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QUESTIONS OF
THE WEEK

QUESTIONS OF THE WEEK

, QUESTIONS OF THE WEEK, Brydens Lawyers

My child was bitten passing by an unrestrained dog, do we have the potential for a claim?

 

Some of the most tragic cases I have ever been involved with concerned injury suffered by children as a result of an attack by a dog. We have all read reports and are fully aware of the potential for not only serious injury but loss of life that can result from a dog attack.

The Companion Animals Act 1998 provides the legislative scheme for the identification and registration of companion animals but also identifies the duties and responsibilities of their owners.

The legislation provides that for any dog in a public place, it must be under the effective control of a competent person by means of a chain, cord or leash. Certain breeds of dogs must be muzzled at all times when off the property where the dog is ordinarily kept.

Of most relevance is the provision contained within the legislation that provides that if a dog rushes at, attacks, bites, harasses or chases any person, whether or not any injury is caused, the owner of the dog or the person who is in charge of the dog, is guilty of an offence. It should be noted that it is not an offence if the incident occurred as a result of the person trespassing on the property where the dog was being kept.

Therefore, the general view is that if you suffer injury as a result of an attack by a dog, off the premises where the dog is ordinarily kept, then there is a statutory liability on the part of the owner of the dog or the person in charge of the dog at the time.

The common law also provides that if you suffer injury, loss or damage as a result of another party’s negligence, which could include the failure to properly restrain a dog, then you would be entitled to prosecute a common law action for damages.

Regrettably there is no obligation under the law to ensure that dogs are insured for the purpose of any injury, loss or damage occasioned to another person. That is, if there is no public liability insurance held by the owner of the dog or the person in charge of the dog at the time, then a successful claim would have to be satisfied by the owner of the dog themselves. Often there have been instances where successful claims have never been satisfied given the inability of the dog owner to pay the judgment sum. Most public liability insurances attach to a home contents policy. It will ordinarily cover the insured person for negligent acts off the premises. Accordingly, the owner of a dog or a person charged with the responsibility of a dog which attacks another off the premises would invariably be covered by the public liability insurance which they hold even though the attack occurred off the premises.

It is imperative that owners of dogs carry public liability insurance to protect themselves in the event of their dog attacking another person. Those who have suffered an attack by a dog, off the premises where the dog is ordinarily kept, would almost certainly have a claim available to them for the injuries which they have sustained. Even if the attack occurred on the premises where the dog was ordinarily kept a common law action could still be available to the injured person if they can establish negligence on the part of the owner of the dog or the person charged with the responsibility for the dog.

If you have suffered injury as a result of a dog attack strict time limits apply to the prosecution of a claim that is available to you. Brydens Lawyers are the experts in the prosecution of all compensation claims. For expert legal advice and representation in relation to all claims arising from a dog attack, contact Brydens Lawyers today on 1800 848 848. Brydens Lawyers – #WE DO personal injury claims.

Our past Questions

NEED LEGAL ADVICE? YOUR QUESTIONS ANSWERED

PERSONAL INJURY

 

ANONYMOUS QUESTION:
I was involved in a car accident where someone changed lanes and hit me. I was in the left lane and deemed not at fault. I have no insurance but the other at fault driver does. I contacted his insurance company and they said he needs to lodge the insurance claim himself. I contacted him and he refused to lodge a claim. What do I do in this case to ensure damage to my vehicle is compensated for by the at fault party?

BRYDENS LAWYERS ANSWER:
What you have raised is unfortunately a difficulty that is encountered quite regularly. That is, if the party at fault does not make a claim on their insurance then the claims process itself is not activated and the insurer will not respond to a claim as against its insured. It is of course open to you to try and encourage the other party to make a claim on their insurer. If they fail or refuse to do so then there would be no reason why you should not commence formal court proceedings to recover the damages to which you are entitled. Such proceedings would no doubt focus the attention of the other party who would be motivated to contact their insurer. Brydens Lawyers are available to assist and should you require legal representation please click here to contact us to speak with one of our experts.

FAMILY LAW

 

ANONYMOUS QUESTION:
My partner and I have separated and we wish to resolve our financial issues. We purchased a house and land package together although our relationship broke down soon after. We have separated now and the house is near completion. Do we need to go to court? I want to make sure I receive what I am entitled to, I am worried it is getting messy and unfair.

BRYDENS LAWYERS ANSWER:
The majority of property settlements occur outside the court system. It is indeed the preferable course. It is a much cheaper and quicker alternative to commencing proceedings in court. If the parties are able to resolve their differences and reach a resolution then the agreement can be formalised and lodged with the Family Court for appropriate orders to be made. No court attendance is required. An alternative is for the parties to enter into a binding financial agreement which does not need to be lodged with the court. There are however a number of specific legal requirements pertaining to a binding financial agreement which must be fully complied with in order to ensure that the agreement is valid.

SUPERANNUATION & TPD

 

ANONYMOUS QUESTION:
I used to work for a government agency from 1986 until November 1994. Due to a car accident on the way to work, I was injured and unable to work after this. I have been living on a disability pension ever since. Recently I have found out that I might be able to seek a lump sum payout and a pension from superannuation fund. Is this possible and can you assist with it?

BRYDENS LAWYERS ANSWER:
We assume that the insurer deemed you to be at fault in the accident and that no motor vehicle accident claim was made. It is correct that there may be rights available to you to claim lump sum benefits pursuant to your superannuation policy which would ordinarily contain provision for a total and permanent disablement claim. Given that you have been unable to work you would, ordinarily, qualify for payment of benefits in this regard. Brydens Lawyers has a specialised Superannuation and TPD Division which can assist. We would invite you to contact us to arrange an appointment with one of our expert lawyers.

COMMERCIAL LAW

 

ANONYMOUS QUESTION:
I want to understand my current obligations under my commercial lease agreement that is contingent on DA being approved. My DA is not yet approved but I have been told the council today that they are thinking of providing me with a deferred commencement date which means the DA is not operational until the conditions are met. The financial implications are too much for me to meet the condition and I would prefer not to continue with the both the DA and the lease but don’t want to lose my deposit. What are my rights?

BRYDENS LAWYERS ANSWER:
Of course, any arrangements or contract including the Commercial Lease to which you refer, can be altered, amended or terminated by agreement between the parties. It would be recommended that discussions be undertaken with the lessor to determine whether or not they would be agreeable to a Surrender of Lease and if so, on what terms. Otherwise it will be the terms of the Commercial Lease that will determine the rights and obligations of the parties. If, as you say, the Commercial Lease is contingent on a DA being approved then until such time as the DA is approved the Commercial Lease is not in force or has effect. Brydens Lawyers has a specialised commercial division which is available to assist. We would invite you to contact Brydens Lawyers to speak with one of our experts should you wish to engage expert legal advice and representation.

PROPERTY LAW

 

ANONYMOUS QUESTION:
We bought an investment property in QLD through a financial group in Sydney. They misrepresented the property, providing us with paperwork that states it was a brand new build. Upon settlement we found out that the property was in fact 5 years old. We want to claim compensation for loss of depreciation, extra strata costs, misrepresentation and mental anguish. Are we within our rights to do this?

BRYDENS LAWYERS ANSWER:
When buying any property the guiding principle for purchases is “buyer beware”. That is, as the purchaser you bear the onus of investigating and establishing exactly what it is that is being bought before Contracts are exchanged.
That being the case consideration may have to be given as to whether there is an available cause of action as against your solicitor or licensed conveyancer who acted on your behalf in whom was entrusted the obligation to ensure that what was being purchased was that which was being represented to you. Your legal representatives have an obligation to ensure that the contract and all the details of the property that are being purchased are explained to you fully and that you understand same.
Before advising further it would be necessary for us to undertake a complete review of your conveyancing file. The Contract and Disclosure Documents would establish the basis of the agreement that existed as between you and the vendor. Any other representations about the property, whether made verbally or in marketing material, generally cannot be relied upon unless they form part of the Contract. Therefore, your only recourse may be against those who were representing you on the purchase.
To consider the matter we would invite you to contact Brydens Lawyers on 1800 848 848 to speak with one of our experts.

WORKERS COMPENSATION

 

ANONYMOUS QUESTION:
I am a pharmacist in a small country NSW town. I had recently banned a woman with a drug problem from entry to the pharmacy. Last month, she attacked me, tore through the shop – destroying property and stock and stole medication. The police initially charged her on 7 counts but the courts dropped it to 2 and she was out on bail right away. I am in the process of putting in place an AVO against her and her partner. I have also required medical attention and time off work as a result of the injuries sustained during her attack. Can I sue her for compensation in addition to the criminal charges she is facing?

BRYDENS LAWYERS ANSWER:
Given that the injuries sustained by you occurred during the course of your employment, (and assuming that you are an employee), you are entitled to make a claim on your employer’s workers compensation insurer. The benefits to which you are entitled include weekly benefits of compensation (wages) for periods of absence as well as reimbursement of all reasonable and necessary medical treatment expenses.
In some cases, you would be also entitled to claim lump sum compensation commensurate with the degree of permanent impairment that results from the injuries. In addition to same, you would have a common law action in assault available as against the perpetrator. Of course, any compensation that you receive from the workers compensation insurer would have to be reimbursed to that insurer from any damages that you recover from the perpetrator. There is a prohibition on “double dipping”. However, what would be of more concern, is whether there would be any prospects of recovering any judgment monies from the perpetrator. That is, although the claim may be successful and you are awarded damages for the injuries which you have sustained a question then arises as to whether the perpetrator has any capacity to pay those judgment monies. One other alternative is to make a claim through the Victims Compensation Tribunal for the injuries which you have sustained. Again however it is not open to you to retain both benefits under the workers compensation scheme and compensation from the Victims Compensation Tribunal.

EMPLOYMENT DISPUTES

 

ANONYMOUS QUESTION:
My wife is pregnant and our baby is due later this year. My employer is saying I am not entitled for parental leave because I muts be employed for 12 months to be eligible. I will be employed for 11 months and 16 days when our baby is due. What are my rights in this situation?

BRYDENS LAWYERS ANSWER:
Section 67 of the Fair Work Act provides than an employee is not entitled to parental leave unless the employee has, or will have, completed at least 12 months of continuous service with the employer immediately before the date that the leave is taken. Leave can be taken within 12 months after the birth of the child. If:
a) The employee has a spouse or de facto partner who is not an employee; and
b) The spouse or de facto partner has a responsibility for the care of the child for the period between the date of the birth of the child and the start date of the leave.
Therefore, you will need to continue working until you have completed 12 months of continuous service for your employer before being entitled to take parental leave.

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Brydens Lawyers were the only people to stand by me offering support and encouragement to get me through my injury. I have been a client since 2016, and the service has been amazing throughout both of my cases. Without Brydens Lawyers I wouldn’t have gotten anywhere near the results that were achieved. I can’t thank them enough.

Sue from Carlingford, a client of our Common Law division

From start to finish, Brydens Lawyers made the conveyancing process so easy! I couldn’t be happier with the service provided- I would definitely recommend them to anyone in need of legal assistance.

Alex Twal of the Wests Tigers

Brydens Lawyers were the only people to stand by me offering support and encouragement to get me through my injury. I have been a client since 2016, and the service has been amazing throughout both of my cases. Without Brydens Lawyers I wouldn’t have gotten anywhere near the results that were achieved. I can’t thank them enough.

Sue from Sydney, a client of our Workers Compensation division

I couldn’t be happier with the Family law team at Bryden Lawyers. I dealt with Natalie and Amanda who were both professional and knowledgeable in my case which ran for 2 years. Overall, I was impressed with the way they guided me in that time, and I felt I could make accurate decisions clearly on their advice. This helped achieve a good outcome to the case and in the end, I considered the cost to be very reasonable for the amount of time that was spent on the matter

Brenden, a client of our Family Law division

Losing a parent at any time is a sad and stressful time for a family. Our dealings with Natalie made things that bit easier. Natalie’s professionalism and patience made things seamless and that bit easier after Mum’s sudden passing. My siblings and I would recommend Brydens Lawyers

Paul Sironen of the NRL

In January I lost my license for 6 months due to a medical condition. I got in contact with Avinash Singh from Brydens Lawyers, straight away Avinash put me at ease. Within a week my license was renewed, and I was able to drive again. I was so impressed with the dealings I had with Avinash and Brydens Lawyers, I wouldn’t hesitate to use them again or recommend them to my family of friends.

Andrew Johns of the NRL

Unbelievable, I’m very happy with my TPD result. Honestly Lee and the team at Brydens Lawyers treat you like family. All my family and friends have had miracle results with Brydens.

Fred from Sydney

Omar Khan of Brydens Lawyers resolved everything quickly and looked out for my interests every step of the way. I’m very satisfied with how things played out and will definitely be contacting them if I need help again.

Paul M, a client of our Commercial division

, QUESTIONS OF THE WEEK, Brydens Lawyers

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