Category

Compensation Claim

Dependency Claim

What is a Dependency Claim

By | Compensation Claim

When a loved one dies, it’s never less than sad and tragic. But when the deceased family member was also the main breadwinner, the consequences for dependants left behind can be devastating.

Economic insecurity can combine with shock, grief and depression to leave the surviving family in a very precarious position.

In situations where the loved one’s death was caused by an act of negligence, surviving relatives may be able to make a claim for compensation – a dependency claim – for the loss of personal and financial support provided by the deceased.

In NSW, this claim is made under the Compensation to Relatives Act 1897 (NSW) (‘CRA’).

In order for a claim to succeed, it must be shown that the deceased’s death was caused by a wrongful act or omission which would have entitled the deceased, if they had survived, to take action to recover damages against the defendant.

Understanding whether you’re eligible to make a dependency claim is something we’ll explain more in this post, but if you need guidance on making a compensation claim after the unfortunate death of a close family member, contact compensation specialists Gajic Lawyers.

Who is eligible to claim under the Act?

Eligible people who can make a claim under the CRA include: spouses, siblings, half-siblings, parents and children of the deceased.

Additionally, these eligible persons must be able to show a level of personal or financial dependence on the deceased prior to his or her death. The action is brought by and in the name of the executor or administrator of the deceased, on behalf of eligible dependants.

It’s important to note that under the CRA, only one action can be brought by eligible persons, with any damages awarded divided among dependants.

Claimants should also be aware that under s 5T of the Civil Liability Act 2002 (NSW), the court is entitled to have regard to the contributory negligence of the deceased person under a claim for damages brought under the CRA, meaning damages payouts to dependants can be reduced if it’s found the actions or omissions of the deceased played some role in causing their death.

What can be claimed for?

A compensation to relatives claim can encompass economic losses, including lost wages, earnings and superannuation, as well medical and funeral expenses.

A child who loses a parent through a negligent act, for example, can claim for the loss of the financial benefit that he or she expected to receive from that parent up to the age of 18. The amount potentially payable is not capped, as other damages amounts are in the Civil Liability Act, meaning a child of a high-earning deceased may be awarded an amount which reflects the actual loss.

A claim by a spouse may include both the loss of financial benefit provided by the deceased and the loss of the domestic and childcare assistance they provided. The loss is calculated at the commercial rate of providing such services, as found by the High Court in Nguyen v Nguyen.

Claims for compensation for the nervous shock arising from the death of a loved one are also possible. Damages in this claim may be available for economic and non-economic losses, as well as medical expenses.

How damages are divided

Any award of damages in a dependency claim is divided among the eligible persons who are party to the claim, apportioned based on the injury and/or loss arising from their loved one’s death.

If the deceased had more than one spouse, they are separate parties to the one action and damages will be apportioned between them.

Actuarial formulas and other evidence are generally used by the court in order to help decide on the apportionment of damages in dependency claims.

The need for expert advice

Dependency claims can be complicated and the guidance of specialist compensation professionals such as Gajic Lawyers is highly advised.

Past cases have demonstrated a wide discretion on the part of courts in assessing such claims. Strong evidence of dependency, of the deceased’s income and assets, and of the domestic and childcare assistance they provided to the household are all required in order for the claim to succeed.

There are also time limits to observe and the sometimes difficult assessment of how damages will be divided among dependants.

We can help make this whole process smoother and less stress-free, so contact us today for a no-obligation initial consultation.

Nervous Shock Claim

What is a Nervous Shock Claim?

By | Compensation Claim

There are events in life so shocking to witness they can cause a person psychiatric illness.

A car accident caused by the negligence of another driver in which a family member witnessed the death of a loved one may cause that witness to develop a psychiatric illness manifesting as depression, anxiety or post-traumatic stress disorder, for example.

In other circumstances, a close family member of someone who was killed, injured or put in peril in a work accident caused by negligence may develop a genuine psychiatric injury even if they did not witness or were not at the scene of the incident.

In both these situations, a person may be able to make a nervous shock claim seeking compensation for their illness.

Expert advice from specialist legal professionals is essential when making a nervous shock claim. A skilled lawyer can navigate the demands of the Civil Liability Act 2002 (‘the Act’) as well as the evidence required to establish a ‘genuine psychiatric illness’.

What is required to make a nervous shock claim?

The provisions of the Act allow a person who suffers significant injury such as psychiatric illness to access compensation when their injury causes significant medical expenses and adversely impacts their ability to earn an income.

In order for a nervous shock claim to succeed, the claimant must obtain medical evidence – usually an expert report from a specialist – that diagnoses a recognisable psychiatric condition which is more than a normal reaction of grief to the accident.

As mentioned above, the Act limits compensation for ‘pure mental harm arising from shock’ to situations where the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril; or the plaintiff did not witness the incident, but is a close member of the family of the victim.

The claim must also show that the defendant ought to have foreseen if reasonable care was not taken, that the harm was capable of causing a person of normal fortitude to suffer a recognisable psychiatric illness.

Who is a close family member?

In claims where a close family member of a victim has suffered psychiatric illness, even though they did not witness the incident, the question arises as to who meets this criteria.

The Act defines close family member as:

  • a parent of the victim or other person with parental responsibility for the victim, or;
  • the spouse or partner of the victim, or;
  • a child or stepchild of the victim or any other person for whom the victim has parental responsibility, or;
  • a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim.

Spouse or partner means the person to whom the victim is legally married (including the husband or wife of the victim), or a de facto partner.

Possible damages available for this sort of claim

If a claimant is able to prove the defendant’s liability for their illness, they also need to show the harm caused by the injury. This might comprise past and future medical expenses, lost wages, and future economic losses.

The number of damages that may be claimable will depend on the severity of the injury and its duration. Is the psychiatric illness caused by the nervous shock permanent, affecting your ability to ever work again or maintain your personal welfare?

A case example is found in Lee v Carlton Crest Hotel, an NSW case from 2014 where the plaintiff, Ms Lee, witnessed her husband reverse their car out of a multi-storey car park and fall to his death. She was awarded more than $250,000 for non-economic loss plus substantial amounts for past and future expenses (medical and psychiatric treatment, and medicine), and domestic assistance, after experiencing a near ‘complete psychological collapse’ after the accident.

Time limits… and the need for good legal advice

A statutory limitation of three years from the time of the date of the incident applies in which to commence court proceedings for personal injury, including for nervous shock claims.

In order to meet this deadline, as well as bring together the necessary medical evidence and establish the elements of negligence necessary to find the defendant liable, engaging legal specialists with a long track record in psychiatric illness claims makes sense.

Contact Gajic Lawyers today for an obligation-free initial consultation.

Institutional Abuse Claims

Institutional Abuse Claims Litigation – The importance of Preparation

By | Compensation Claim

Co-written by Stiphany Yako

Institutional Child Sexual Abuse claims are some of the most complex and difficult matters to navigate for all. There is an expectation on parties involved in the claim to act as model litigants to a high degree, primarily due to the extreme nature and background of institutional abuse claims and the psychological effect on survivors of institutional abuse.

Preparation of these matters requires  survivors to provide written testimony to the best of their recollection. We understand the difficulty of our clients recollection of events that may have happened decades ago.

To assist our clients, we take steps to obtain information including government records under Freedom of Information (FOI) requests, medical records and tracking down witnesses. We undertake a diligent process to ensure our requests are being received, responded to and making sure the parties are providing fair and equitable approach to providing this information.

The year 2020 was a difficult challenge with the COVID-19 lockdowns and many organizations including the State Government employees were transitioning to a work at home environment and there were not enough hands on deck to address FOI requests in the usual time frame. These delays have extended throughout the year due to the amount of cases of institutional abuses continue to increase.

Strategies employed to work around this process include adjusting FOI requests to tackle the burdens faced by officers responding to requests, serving preliminary notices of claim to institutions to coordinate responses with representatives and/or legal officers to promote a quicker response to FOI requests.

It is expected the parties involved in Institutional Abuse matters to act as a model litigant and undertake care and consideration for these matters and survivors who are seeking justice. There are guiding principles established by The Royal Commission into Institutional Responses to Child Sexual Abuse but these are guides only and we expect institutions to undertake significant diligence in examining each matter.

The last option would be to issue a Summons in Court, which is a significant step and would require a concise pleadings on the matter. Due to the passage of time, many survivors cannot recall key information and it is vital they provide as much detail as possible and serving proper particulars with a notice of claim before undertaking this option.

The final hurdle is preparing medical evidence. To proceed with a claim, most jurisdictions require a medical report giving a clear diagnosis and the primary factor to this diagnosis should be the incidences of intuitional abuse. Certain jurisdictions also require a threshold assessment to be met. Most survivors have experienced various forms of psychological trauma stemming from their childhood experiences which may impact on their psychological profile and assessment. Many survivors do not speak about their traumatic experiences to medical professionals which also create a difficulty for medical assessors.

It is vital that that proper analysis and the collation of evidence and information be undertaken to prepare a case to the best possible position before entering into litigation and possible negotiations to resolve institutional abuse matters.

Upholding confidentiality, handling complexity and trustworthiness are key aspects you can expect when entrusting your claim to Gajic Lawyers. Our friendly and trusted professionals have an admirable track record in getting our clients the best possible result. Call us today on 0298905885 to speak to one of our professionals.

Institutional Abuse Claims

Institutional Abuse Claims: How Do I Make a Claim?

By | Compensation Claim

The effects of childhood sexual abuse are felt by survivors for the duration of their lives. In many cases, survivors are not able to process what happened to them (and in some cases, never do) until many years have passed since the incidents of abuse.

As a result of the findings of the Royal Commission into Institutional Responses to Child Sex Abuse, which handed down its final report in 2015, the options for survivors of child sexual abuse to seek compensation for their past pain and suffering were changed.

One of the key outcomes of the Royal Commission was the implementation of the National Redress Scheme. But even for those abuse survivors who pursue a common law compensation claim against individuals or institutions responsible for perpetrating or facilitating the abuse, statutory time limits on making a claim were abolished in Australia’s states and territories so that historical instances of abuse could still come before the courts. Additionally, in some cases, even previous settlements of claims can be re-negotiated.

Initiating a claim through the courts requires the guidance and advice of specialist compensation professionals such as Gajic Lawyers. We have the expertise and experience to give your claim the best chance of success, particularly when you are facing an institution that boasts greater financial and legal resources.

What is required to make a claim?

The Royal Commission revealed that the range of institutions in which childhood sexual abuse had occurred was spread across our society, including churches, state-run homes for boys and girls, foster homes, detention centres, schools, privately-run institutions and even organisations such as the YMCA, Surf Life Saving and the Scouts.

Before an abuse survivor is ready to make a claim, a number of important questions need to be asked. The first question is who the perpetrator actually was and whether they were facilitated in their behaviour by an institution or organisation. What time frame did the abuse occur over and is there any evidence (witnesses, medical reports, etc.) to support your claims? Does the organisation or institution in which the abuse occurred still exist? What has been the direct impact or effect of the abuse on your life (depression, substance abuse, etc.)?

An experienced legal professional will help you answer all of these questions in support of your claim, in particular by gathering the necessary evidence, if it exists.

A claim for compensatory damages in this situation can never fully compensate you for the psychological damage caused by childhood sexual abuse. The best such a claim can achieve is a monetary amount to recognise:

  • the pain and suffering you’ve experienced;
  • the costs of treatment you have received as a result of the abuse, including any future costs; and
  • an apology from the institution or organisation which facilitated the abuse.

Time limits

Another outcome of the Royal Commission was a change to the statutory time limits in Australia’s states and territories for bringing legal action in relation to childhood sexual abuse.

Like most compensation claims, a limit of three years from the date of the incident formerly applied in most jurisdictions but this has now been abolished throughout Australia. No time limit now applies to bringing a compensation claim for institutional childhood sexual abuse and, in most jurisdictions, actions for other types of mental and physical abuse of a child as well.

Despite this change, an institution accused of allowing childhood sexual abuse may still be successful in arguing before the court that a claim should not proceed because the alleged events occurred so long ago that there is no longer enough evidence available to enable a court to properly assess the claim.

The assistance of specialist compensation lawyers is vital in such cases because even though there might be little chance of a legal action succeeding, a negotiated settlement with the institution or organisation for historical abuse may still be possible.

If an institution responsible for childhood sexual abuse no longer exists, there are still options for redress under the National Redress Scheme. The government will pay redress, for instance, where a government and a non-government institution were both responsible for the abuse and the non-government institution no longer exists.

How much can be claimed in damages?

While the maximum payout available under the National Redress Scheme is $150,000, a successful common law damages claim may see you awarded a much larger sum of compensation. The amount is decided by the court taking into account the severity and type of the abuse you suffered, the evidence of its effects on your life, and the amounts awarded in earlier cases.

The other advantage of a damages claim is that anyone is entitled to bring a claim for childhood sexual abuse they suffered, unlike the National Redress Scheme which sets out eligibility criteria in order for an abuse survivor to make an application.

Seek legal advice

Claiming compensation for sexual abuse suffered as a child can be a complex and difficult path. The historical nature of the claims can make it difficult to produce enough evidence to substantiate the claim – perpetrators die, memories become dim, documents are destroyed.

At Gajic Lawyers, we have proven expertise in pursuing this sort of claim. We will work with you in compiling your claim for compensation and be tireless in our quest to achieve a just result. Call us today on 0298905885 and speak to our friendly, understanding team if this article raises any issues for you.