David tells us how he takes on any case and what employees and their employers alike, should look out for when trying to avoid a lengthy case after an unfortunate accident at work.
In this day and age, workplaces are often vigilant when it comes to safety. How do such catastrophic injuries occur?
The Australian legislation which covers workplace policies and environments can never 100% guarantee that workers will have full safety. There are always other collateral factors and reasons why workers become injured. One of the class examples is a building site. Usually, on a building site there is a project managing company that overshadows and oversees the entirety of the workplace. The building managers do not exclusively perform all of the tasks and, as such, they are required to subcontract other companies which offer various building services. For instance, apartments may be constructed and as a result of the construction of various high sky apartments, scaffolding is required, as well as gyprockers and plumbers (etc). These trades are subcontracted and entered onto various sites and attend to their specific duty and/or agreed performance of the task. An example of the danger that may be imposed which can affect a worker is that: the scaffolding may be loose; planks on scaffolding may not be harnessed properly and/or the worker themselves lack experience. The injured worker can sue his or her own employer and also sue against the person responsible for that particular task and/or the overseeing project manager, as they have the ultimate duty to ensure the overall safety of all trades which are on a worksite.
What laws protect employees in such cases?
There are mainly laws, but commonly, the worker’s compensation legislation applicable to each state covers the worker’s injury and/or the potential to sue subcontractors and/or head contractors under the Public Liability Act 2002, in the state of New South Wales. The Acts vary to time to time and they offer different forms of compensation.
There is no compensation entitled to the worker if he sues only his employer for past and future domestic assistance, which is often the case.
For instance, the public liability legislation, if a worker chooses to cross-claim and/or sue director a subcontractor or head project manager, allows the worker to receive compensation for general damages, past and future domestic assistance and past wages and superannuation benefits. Most workers receive limited legal advice, unfortunately, and only sue their employer. When suing their employer, they only receive the following heads of damages:
- Past economic loss
- Future economic loss
- Past superannuation
- Future superannuation
There is no compensation entitled to the worker if he sues only his employer for past and future domestic assistance, which is often the case.
When suing an occupier, the worker can sue for damages in accordance with Section 16 of the Civil Liability Act in the state of New South Wales; in the most extreme case, the receipt of compensation is approximately $587,000 and this is often compared to a quadriplegic if the injury so warrants. Workers are not aware of this and the fact that their firm ought to offer specific specialities and have significant resources to ensure that workers receive their full entitlements. Clearly in the state of New South Wales, most firms miss this opportunity and as a result, expose themselves to what can be professional negligence for failing to advise their client correctly.
On the other hand, what laws work in favour of employers, or their insurance holders?
This is a question which warrants specific reflection and a fine understanding of the entitlements to which injured people are entitled to.
No law can specifically cover all compensation and one needs to remember that the drafting of the legislation is often made by politicians and they are out of touch with the realities of what workers require in terms of if and when they are injured and what compensation would rightfully be the compensation in light of their injuries.
In my view, there needs to be a complete overhaul in respect to all legislation and laws which apply to persons throughout Australia.
Insurance holders often are the worker’s employer. Various WorkCover legislation and laws in Australia insist, and it is mandatory for an employer, to take out workers compensation insurance for his or her employees. Failure to do so attracts penalty points by way of a fine and on last reading of the appropriate legislation, up to $10,000 may be payable by the employer if he or she lacks the compulsory cover.
With generations being more aware of their rights, is there anything else, or any other regulatory changes you wish to see for the betterment of your clients?
In my view, there needs to be a complete overhaul in respect to all legislation and laws which apply to persons throughout Australia. The most recent changes which have occurred are the changes to worker’s rights and all other person’s rights in New South Wales in the last 10 years is, in my view, extremely unfair. A cap is placed on what general damages persons can receive together with limited periods of weekly compensation payments paid to persons who receive compensations. The politicians have not taken the best interests of injured persons into consideration. It is no coincidence that when the legislative changes have been made under the various leading politician(s) which are in government and when they retire from their position of government they miraculously end up on the Boards of insurance companies with big fat paycheques exceeding $1m per annum. I’m not in a position to reveal that information, but if you trace back the politicians which have been involved in the legislative changes and where they went from being premiers of New South Wales to their current positions of employment, one can easily reveal the information.
No case is too big or small for our firm.
Can you expand on the process you undergo when you first instruct on a case? What are the three most important parts to consider prior to anything else?
No case is too big or small for our firm. Many years ago, there was a mentor who gave a lecture to the firm and indicated that there are no small cases, there are only small lawyers. There is an attitude in the state of New South Wales that lawyers pick and choose their cases. This is a firm that does not do that. We first accept all instructions, no matter how big or small the claim is. When accepting instructions, you need to consider the following which is prudent and the following salient matters to the case:
- The credit of the injured person;
- The liability;
- The damages and the entitlement to the client.
Each case is merited on its own facts and circumstances. Each person has a different version of events as to how its case and/or injuries occurred and this is a very important point to consider.
Liability in respect to most cases under the legislation is something that also needs to be considered.
People are married, people have children; people are not married, people do not have children. Their reasons for making a claim and their needs for entitlement to compensation vary from time to time. All these factors need to be taken into consideration and the firm takes these factors into consideration and assists the client the best way it can.
Liability in respect to most cases under the legislation is something that also needs to be considered. Sometimes the worker and/or injured person simply cannot win. For example, if a worker enters a workplace intoxicated and/or drug-induced and injures themselves and that information is revealed during the course of the proceedings, then the worker clearly has no right and/or prospect of success.
Liability is often a tricky situation for an injured person and/or any other person in claiming compensation.
How can a personal injury case be won?
Personal injury cases need to be won with forensic and diligent analysis. The issues of liability need to be considered and the entitlements of the client need to also be considered.
Liability is often a tricky situation for an injured person and/or any other person in claiming compensation. It varies from road rules to workplace injury management safety regulations and other matters. The legislation are clear on this issue and need to be interpreted in the best way they can to assist. In many situations, one can manipulate the circumstances and facts, but this is also dependent upon instructions from the client.
The little guy is the guy with no money.
When working hard to help the little guy, what challenges do you and your clients often face? What method do you think is best to overcome these challenges?
The little guy is the guy with no money. They take on an insurer and an insurer undoubtedly has unlimited resources. Clients from time to time do not understand that once their claim is lodged, the insurance company has millions and billions of dollars of resources. Commonly what happens immediately, is the claim form is received by an insurer and they have a special department within their company to research the individual (usually by social media), and then try their very best to find the things that would go against the person making the claim.
In practice, we always advise clients not to malinger and/or exaggerate their injuries.
Importantly, there is an unspoken rule upon people who try to make claims and that they from time to time have other pressing matters in their life, whether family or other social matters, and they do not have the time to regularly attend on treatment planner providers and/or specialists to maintain a consistent ongoing line of medical history which is consistent and true to their case. Due to being busy, they don’t have time to attend a GP or a specialist once a week or once a month; there are times when people that are injured don’t go to their doctors for a number of months. In this situation, the insurer clearly positions themselves to argue against the person making the claim and merely raises the hopeless argument that because they have not gone to a GP and/or specialist for a number of weeks and/or months then they must not be injured. The courts over the years have made findings, and there is significant case law in this regard, and fortunately due to that case law it is supportive for the worker/ injured, as it is accepted that people don’t have time to go to their GPs and/or specialists every day and/or once a week to complain about the injuries.
In practice, we always advise clients not to malinger and/or exaggerate their injuries. We always ask them to give a true and accurate history to insurance doctors, their own doctors and to ourselves. We find that the initial history provided by an injured worker is important, as once that history is provided, it is then what all parties will rely upon leaving it to be hopeful that in due course the worker receives their rightful compensation.
David Marocchi
Director
177 Northumberland Street, Liverpool, NSW 2170 P (02) 9099 3199
David Marocchi is the Director of the firm Paramount Compensation Lawyers, which was founded in 2009. The Director at the time foreshadowed significant legislative changes in the state of New South Wales and other states in Australia and due to passion for compensation and acting on behalf of the working class, the firm was created, which since then, has continued to act in the best interests of people including workers, road users and invitees on properties. The firm does not exclusively practice in compensation for personal injury but also acts in many other areas where compensation is received, for example, wrongful arrests – when persons are wrongfully arrested by NSW Police and other police in various states in Australia, assault and battery and false imprisonment.
