QUESTIONS OF THE WEEK
What are the requirements for making a medical negligence claim?
If you have suffered injury, loss or damage as a result of treatment provided by a healthcare professional there may be a medical negligence claim available to you.
Medical negligence claims are often complicated and complex. However, they need not be. The elements of a medical negligence claim are easily identifiable. The question arises however as to whether there is evidence available to establish the elements of the claim to the satisfaction of the court thus entitling you to claim damages for the injury, loss or damage which you have suffered.
The elements of a medical negligence claim are as follows:
- It is necessary to establish a duty of care. Of this there is no doubt. All healthcare professionals owe a duty of care to their patients.
- It would then be necessary to establish a breach of that duty of care. For same evidence is required of “peer professional opinion” to prove that the conduct of the healthcare professional in question was not widely accepted in Australia as competent professional practise. Invariably this takes the form of an expert’s report from a “peer professional”, that is someone of the same or similar qualifications as the healthcare professional complained of or acting in a similar capacity. Once the evidence is available to the satisfaction of the court that the conduct of the healthcare professional did not constitute “competent professional practise” in accordance with accepted peer professional opinion, then the breach of the duty of care has been established.
- It then is necessary to show, again to the satisfaction of the court, that the breach of duty caused or materially contributed to the injury, loss or damage suffered by the patient. If this causal connection can also be proven then, with the breach of duty of care, the elements of a negligence claim against the healthcare professional have been sufficiently established. Of course, this presumes that injury, loss or damage has occurred. It is important to note that even if breach of duty of care is established but no injury, loss or damage results from same, then there is no claim.
- It should be noted that the mere dissatisfaction with the outcome of medical treatment or a procedure is not in itself sufficient to establish the entitlements to a claim. As set out above, the patient must prove that the duty of care owed by the healthcare professional was breached and that the injury, loss or damage resulted from same. There can be instances where a less than optimum outcome results from medical treatment or a procedure and that this did not arise as a result of any breach of duty of care.
Once the breach of duty of care and the question of causation have been satisfied the court will turn its attention to the injury, loss or damage suffered by the patient for the purpose of determining the appropriate level of compensation. Compensation can be awarded for non- economic loss (pain and suffering), past and future medical treatment expenses, the value or cost of care that is required by the patient, past and future economic or wage loss as well as a contribution towards the patient’s legal costs.
Brydens Lawyers are experts in the successful prosecution of medical negligence claims. If you have any concerns with respect to treatment provided by a healthcare professional which may have resulted in injury, loss or damage then the matter is worthy of investigation. For a free consultation and initial assessment of any claim that may be available to you, call the experts at Brydens Lawyers. Strict time limits apply so do not delay. Brydens Lawyers #WE DO medical negligence claims.
Our past Questions
Question of the week- FRIDAY 22nd May – What are the requirements for making a medical negligence claim?
What are the requirements for making a medical negligence claim? If you have suffered injury, loss or damage as a result of treatment provided by a healthcare professional there may be a medical negligence claim available to you.Medical negligence claims are often...
Question of the week- FRIDAY 15th May – What is the difference between a Workers Compensation Claim and a Work Injury Damages Claim?
What is the difference between a Workers Compensation Claim and a Work Injury Damages Claim? All persons who are injured at work are entitled to receive benefits from their employer's workers compensation insurer. The benefits primarily are:Weekly benefits (wages)...
Question of the week- FRIDAY 8th May – I have been served with an application for an Apprehended Violence Order (AVO)- what are my options?
I have been served with an application for an Apprehended Violence Order (AVO)- what are my options? Being served with an Apprehended Violence Order(AVO) can be a very distressing experience. This is particularly so if you are unaware of your rights and unsure as to...
Question of the week- FRIDAY 1st May – My Parenting Order is being breached by the other party, what are my options?
My Parenting Order is being breached by the other party, what are my options? Persons are obligated to comply with the provisions of parenting Orders which have been made by the court. In the event that a person fails to comply with such an Order remedial action will...
Superannuation/TPD division Q.What are the new rules surrounding early access to superannuation?In a response to the current pandemic, the Government is allowing Citizens and Permanent Residents of Australia and New Zealand affected by the Coronavirus to access up to...
How has Coronavirus affected contracts and conveyancing? The pandemic, COVID-19, has affected all aspects of our lives. There is a physical, emotional and financial cost. We have also found that this pandemic has imposed itself on some aspects of the work that we do...
NEED LEGAL ADVICE? YOUR QUESTIONS ANSWERED
- PERSONAL INJURY
- FAMILY LAW
- SUPERANNUATION & TPD
- COMMERCIAL LAW
- PROPERTY LAW
- WORKERS COMPENSATION
- EMPLOYMENT DISPUTES
- ASK YOUR QUESTION HERE
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.
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
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.
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.
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.
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.
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.
ASK YOUR QUESTION HERE
FOLLOW US ON SOCIAL MEDIA TO STAY UP TO DATE WITH
WHAT IS HAPPENING AT BRYDENS LAWYERS.
LATEST NEWS FROM LEE
The COVID-19 pandemic has brought about unprecedented circumstances from both an economic and personal perspective for all Australians. In response to this, amongst a host of other initiatives, the government have announced a scheme to provide citizens and permanent...
CONTACT US TODAY
LIVERPOOL HEAD OFFICE
Lvl 2, 203 Northumberland Street,
Liverpool NSW 2170
OFFICES BY APPOINTMENT ONLY
Adamstown Erina Parramatta
Albury Goulburn Redfern
Bankstown Leichhardt Sydney City
Blacktown Miranda Tamworth
Campbelltown Newcastle Wagga Wagga
Chatswood Nowra Wollongong