Workcover Victims Victoria

FYI ...

2016-04-01T17:37:00.000+11:00

DISCLAIMER

This blog site has been prepared by an interested member of the community based on the results of their own research into relevant areas. All data, information and material are provided for information and education purposes only and should not be construed as legal or other expert advice. Rather, all material is provided with a view to informing you about the issues. We do not provide advice in relation to any particular offence. Any legal decision should be made with the advice of a trusted and competent legal advisor. Individual circumstances may vary and require specific legal advice from a qualified legal practitioner. The information provided on this blog site is a factual analysis of the data. Where calculations are made all of the applicable assumptions are provided to allow independent replication and confirmation to be undertaken. Where reference is made to text, the source of the reference is quoted and if available a link is provided to the document for verification. Where an interpretation has been provided, it is up to the reader to satisfy themselves about the veracity of the conclusion. Many of the arguments contained in this blog site have not yet been tested in court or provide a challenge to existing law. They are provided as reasonable arguments only for which we believe there is some legal and/or technical support. Neither we nor any of our data or content providers shall be liable for any errors or delays in the content, or for any actions taken in reliance thereon. We provide links for your convenience only. Do not copy any information from this site without approval. We shall not be liable for any damages or costs of any type arising out of or in any way connected with your use of the data, information or material provided on this blog site, whether or not such damages were foreseeable or contemplated and whether arising under contract, negligence or any other legal or equitable basis. Workcover victim’s Victoria, 2008

WorkSafe pays law firms bonuses to minimise victims' payouts

2013-12-28T13:47:00.003+11:00

Victoria's work safety authority is paying lawyers millions of dollars in confidential bonuses to minimise payouts in compensation cases brought by alleged victims of workplace accidents.

In at least one case, a firm representing the authority received more than $1 million in bonuses over 12 months on top of legal fees.

The bonuses are paid out by WorkSafe Victoria, which receives its funding from fees paid by Victorian businesses. The bonus scheme has provoked debate inside the legal community because of the potential it will encourage firms to cut corners in order to maximise their bonus payouts, or devise other strategies that may not be in the best interest of victims or the scheme.

But defenders of the bonus system say it encourages lawyers to deal with cases more efficiently and prevents rorting of the state's workers' compensation scheme.

Leaked files from law firm Lander & Rogers reveal that it has made about $5 million in WorkSafe bonuses over five years by minimising payouts to alleged Victorian victims of workplace accidents. The biggest yearly bonus payout to the firm was $1.2 million in 2010.

The leaked files also show that the legal firm encourages its lawyers to offer ''entertainment'' to WorkSafe Victoria executives at the tennis, musicals and barristers' functions. A well-placed source said that at least two senior WorkSafe staff had attended events paid for by the Melbourne firm.

The leaked Lander & Rogers files show one strategy proposed by the firm involves creating closer ties, or becoming ''relationship partners'' with lawyers representing workplace accident victims via ''targeted plaintiff firm strategies''.

Lawyers who support the incentive scheme argue it encourages law firms to deal with cases in a fair and timely fashion.

They say that maintaining professional relationships with plaintiff firms also leads to fairer outcomes by reducing legal hostilities that can lead to unnecessary litigation.

In defending the bonus scheme, a WorkSafe spokesman said that the extra payouts were offered because the fees defence firms get paid for handling WorkSafe cases ''are significantly less than standard commercial rates''. ''Performance incentives are designed to preserve and protect the interests of the scheme and the amount paid in [bonuses in] 2012-13 represents 0.3 per cent of the total benefits paid to injured Victorian workers last year,'' the spokesman said.

Internal Lander & Rogers figures from 2011 show its WorkSafe department made almost $4 million in profit, most of which is later distributed to the firm's partners. The law firm's WorkSafe lawyers also generated bigger profit margins - up to 35 per cent - than lawyers from any other section of Lander & Rogers.

The WorkSafe spokesman also said the bonuses were only awarded if law firms ''meet a range of performance criteria, which includes achieving a timely outcome for injured workers' claims for compensation and reducing the use of the courts''. WorkSafe declined to answer questions on the total in bonuses it paid law firms or how many gifts WorkSafe staff received.

''WorkSafe adheres to the criteria set out in the gifts, benefits and hospitality policy framework 2012 issued by the Public Sector Standards Commissioner and expects all employees to comply with the policy,'' the spokesman said.

In response to questions about its bonuses and gift-giving policy, a Lander & Rogers spokesman said: ''Like other firms who provide legal services to WorkSafe, Lander & Rogers is eligible to receive performance incentives where it meets certain criteria, which include helping to ensure timely resolution of injured workers' claims.

''We maintain professional working relationships with all plaintiff firms and other stakeholders in the workers compensation scheme and always work in the best interest of WorkSafe.''

The law firm threatened Fairfax Media with legal action if it published details from its leaked files.

In other developments linked to the management of WorkSafe cases, it is understood that some defence firms have reduced the hiring of private detectives who conduct surveillance on allegedly injured workers. The practice of conducting surveillance on workers has recently drawn the ire of several Victorian judges because it is viewed as expensive and intrusive.

But several lawyers who spoke to Fairfax Media said that surveillance was a critical tool to prevent rorting.

Read more: http://www.smh.com.au/national/worksafe-pays-law-firms-bonuses-to-minimise-victims-payouts-20131225-2zwrt.html#ixzz2ojXZQvZz

I always knew Worksafe Victoria were nothing but a load of scumbags and this just proves it..Injured workers are not receiving their full legal rights when companies like worksafe are making deals with lawfirms.

Where are our legal rights to our day in court and compensation????

If you were one of these injured workers then send me your details as I am going to take this up with worksafe asap..

Compensation table for physical impairment

2013-05-30T20:56:00.001+10:00

Maims Charts - Worksafe Victoria by workcovervictim8242

Implications or determining permanent impairment - High Court decision in Fellowes v MRCC

2013-05-30T20:51:00.002+10:00

Implications or determining permanent impairment - High Court decision in Fellowes v MRCC by workcovervictim8242

Who Did and Did Not Receive Workers Compensation 2009-10

2013-05-30T20:44:00.000+10:00

Who Did and Did Not Receive Workers Compensation 2009-10 (1) by workcovervictim8242

Laverton workplace decapitation: Poultry giant loses legal challenge

2013-05-30T16:27:00.005+10:00

By ADRIAN LOWE / The Age May 30, 2013 One of Australia's largest chicken producers has failed in a bid to have a court overturn a ruling that two of its employees be forced to speak to Victoria's workplace safety watchdog over the decapitation of a worker at a Laverton processing plant three years ago. Contractor Sarel Singh died in August 2010 when he was cleaning a machine known as a chain line. As the machine moved past, his jacket snagged and was dragged into the processor – a machine capable of dispatching 183 chickens per minute. He was killed instantly. The employees have made the application on an individual basis but their attempt is tied up in the company's bid to have charges against it dismissed over the death. Last year, WorkSafe Victoria charged the company that operates the plant – Baiada Poultry, owners of major labels Lilydale and Steggles – with four offences under the Occupational Health and Safety Act. WorkSafe alleges that Baiada failed to provide a working environment that was safe and did not pose risks to health, as well as failing to provide or maintain safe plants or systems of work and providing information necessary for employees to work safely. The case has been scheduled for a committal hearing in Melbourne Magistrates Court in September, but Baiada has lodged an application to have the charges dismissed.

FYI: All readers of this blog are to acknowledge the following "DISCLAIMER"

2013-05-30T14:36:00.001+10:00

FYI: All readers of this blog are to acknowledge the following "DISCLAIMER" This blog site has been prepared by an interested member of the community based on the results of their own research into relevant areas. All data, information and material are provided for information and education purposes only and should not be construed as legal or other expert advice. Rather, all material is provided with a view to informing you about the issues. We do not provide advice in relation to any particular offence. Any legal decision should be made with the advice of a trusted and competent legal adviser. Individual circumstances may vary and require specific legal advice from a qualified legal practitioner. The information provided on this blog site is a factual analysis of the data. Where calculations are made all of the applicable assumptions are provided to allow independent replication and confirmation to be undertaken. Where reference is made to text, the source of the reference is quoted and if available a link is provided to the document for verification. Where an interpretation has been provided, it is up to the reader to satisfy themselves about the veracity of the conclusion. Many of the arguments contained in this blog site have not yet been tested in court or provide a challenge to existing law. They are provided as reasonable arguments only for which we believe there is some legal and/or technical support. Neither we nor any of our data or content providers shall be liable for any errors or delays in the content, or for any actions taken in reliance thereon. We provide links for your convenience only. Do not copy any information from this site without approval. We shall not be liable for any damages or costs of any type arising out of or in any way connected with your use of the data, information or material provided on this blog site, whether or not such damages were foreseeable or contemplated and whether arising under contract, negligence or any other legal or equitable basis. Workcover Victim’s Victoria, 2008

Workplace Bullying is now illegal.

2013-05-24T17:03:00.001+10:00

Petitioning The Hon Julia Gillard MP Change WorkCover. Give injured workers a fair go.

2013-05-17T23:18:00.000+10:00

The true statistics behind injured workers are alarming; less than 1% of injured workers are 'fraudsters', yet all injured workers are spied on, costing taxpayers over $14 million in Victoria alone per anum.

People injured at work deal with a system that frequently creates secondary problems and complications to the initial injury The experience of dealing with a workplace injury claim proves to be a confusing, confronting and toxic process that is detrimental to the hard working Australian's health.

The amount of secondary psychological injuries that many long-term injured workers develop after being processed by the WorkCover system is costing this country billions of dollars, through lost productivity, future earning capacity, taxpayer funded pension support to look after the people that can't return to work. We understand there is now a growing suicide rate connected with the WorkCover scheme.

We believe in the equal and inherent value of human life. It is our opinion the Australian Workers Compensation Scheme is adversarial and based around inhumane bullying and corporate profits.

We call on the Federal Government of Australia to take action and give decent working Australian's a fair go when they are at their most vulnerable.

Please sign the petition below:

http://www.change.org/en-AU/petitions/change-workcover-give-injured-workers-a-fair-go

Independent medical examinations - know your rights

2013-04-29T13:47:00.002+10:00

Independent medical examinations - know your rights

What is an Independent Medical Examination?

WC: An independent medical examination is an examination conducted by
an independent medical examiner which provides your WorkCover Agent or
self-insurer* with more information about whether you have a work-related
injury or illness.

Workcover Victims: Independent, yeh right, these doctors are hired by
workcover and paid for by workcover so these doctors are not independent
at all and why does it take up to a dozen of these examinations for workcover
to be able to decide whether or nor you have a work related injury?
Are they really that stupid!

WC: This information may be used by your Agent or self-insurer to make
a decision about your entitlement to weekly payments and medical and
like services. It may also assist them in supporting your return to work.

Workcover Victims: May be used of course its used, but against you.
WC constantly expect victims of workplace injuries to see many of these
doctors until they get a report they like and can use against you.
Supporting your return to work would have us back at work and not still
in the system years after the injury occurred and WC should also be seen
providing legislation enforcement at a much higher rate than they are at
present.

WC: The Accident Compensation Act 1985 (the Act) allows for a WorkCover
Agent or self-insurer to request that a worker attend an examination
conducted by an independent medical examiner, that is approved by the
Victorian WorkCover Authority (VWA), at reasonable intervals.

Workcover Victims: The ACA allows for workcover to force you into
these ridiculos examinations and some of us many years after our original
accidents and under the proviso that they are independent but, WC also
states that these specialists need to also be approved by WC so how are
they independent?

WC: Who is an Independent Medical Examiner?
Independent medical examiners are independent medical experts
approved by the VWA, based on strict criteria. They are not employees
or representatives of the VWA, its Agents or self-insurers, however
they are paid by the VWA for their services to provide independent
medical advice.

Workcover Victims: Independent medical examiners are independent
medical experts approved and hired by the VWA. Therefore they are
enployees!! Their independent medical advice is bais towards WC
and you can see this by their whole impariment percentages handed
out to victims who are now cripples but are being told that they have
less than a 30% whole person impairment! Independent my arse!

WC: An independent medical examiner’s role is to review your medical
condition and/or treatment and provide Agents with an independent
medical opinion about your injury or illness. They do not provide you with
treatment. Answers that independent medical examiners give to Agents or
self-insurers may help them determine whether you are entitled to weekly
payments and/or medical services.

Workcover Victims: Answers that these alledged independent examiners
provide are used to assess you ability, to return to another job, deny your
entitlement to benefits and to cut off medical and alike care, nothing else!

WC: Independent medical examiners are subject to a rigorous quality
assurance program by the VWA to ensure the ongoing quality of their work.
You may be required to attend an independent medical examination
conducted by a registered medical practitioner, physiotherapist,
psychologist, osteopath, chiropractor or dentist.

Workcover Victims: The quality of these examiners is not monitored
to ensure the ongoing quality of their work. Its so as WC can maintain a
listing of doctors that will play into WC's hand when assessing a victim.
WC: Do you have to attend the Examination?
You must attend an independent medical examination that is arranged
for you. If you are unable to attend the examination for a legitimate
reason, alternative arrangements can be made.
If you unreasonably refuse to attend or co-operate during the
examination, your WorkCover payments may be suspended until you
attend. You may also lose any payments you would have received if you
later attend an examination.

Workcover Victims: WC states that it is a no fault insurer yet the above
clearly states that if you dont attend you will lose your benfits. Last time
I checked that is not "no fault insurance for injured workers rather a
bullying position taken by the VWA.

WC: How often do you need to attend and examination?
If you make a WorkCover claim, you may be asked to attend an independent
medical examinationat reasonable intervals. The reasonable interval will depend
on the nature of your injury and you may have to attend more than one
examination. If you have any questions about how often youwill need to
attend an independent medical examination, contact your Agent or self-insurer.

Workcover Victims: What is a reasonable interval? once every 3-6 months,
6 examinations 10 examinations? How many examinations does a workcover
victim have to endure before WC can decide that it is work related or not?

WC: Who arranges the Examination?
An independent medical examination may be organised by one of the following:
Your Agent or self-insurer
Lawyers representing your Agent or self-insurer.
You may be contacted by telephone to discuss the purpose of the examination,
the specialty of the examiner, and any other arrangements. You will receive a
letter from your Agent or self-insurer confirming these details.
If you need special assistance with travel or access requirements,
you should advise the person arranging the examination.

Workcover Victims: There they go again using that word independent again!

WC: Who will be at the Examination?
The independent medical examiner may have a nurse or attendant present.
A relative or friend can accompany you to the examination rooms, but it’s up to
the independent medical examiner whether your support person can be present
during the examination. If you prefer a support person to be present, speak to
your Agent or self-insurer before attending the appointment.

Workcover Victims: You are entitled to have someone present during
these examinations whether or not the examinaer likes it or not.
Do not attend these without a support person, its your right!

WC: A psychologist or psychiatrist examiner will rarely allow a family member
or friend to attend an examination because of the personal nature of the
questions that may be asked. The family member or friend may speak to the
examiner after the consultation.

Workcover Victims: You have this legal right and you should inform your
examiner of this fact and insist that your support person has your permission
to be there. It's not up to these doctors to tell you, who can and who cannot
support you. You are already vulnerable and need this support, so dont give
up your rights!
WC: If a physical examination is needed, you may ask another person to be
present during that part of the examination. When another person is present,
he or she should not take an active part in the examination.

Workcover Victims: A physical examination is more invasive than having
a chat so why do they allow your support person in this instance and not in
others? It again show WC inconsistancies within this legislation.WC: What do you need to take to the Examination?
You should take any items that may help the independent medical examiner
assess your condition. This may include: X-rays, scans, reports

WC: The examiner may have already read or reviewed some of your documents.
If the examiner needs results or reports you don’t have with you, you may
be asked to sign a consent form. This will either authorise the release of
information directly to the examiner or authorise your healthcare professional
to discuss your details with them.

Workcover Victims: I would expect that the examiner would have read the
provided documents before he/she sees you and has familarised themselves
with your claim but as we know WC's choices of examiners has alot to be desired.
I would expect that level of examiner working for the VWA to be in the minority.
These examiners have piles of folders on their desks that are all workcover victims
and I for one am sure that they have no idea who they are seeing daily but
they fully understand the $ benefits of working for WC. One Examiner told
me that he recieves $800.00 per claimants file he sees and he had about 30
files on his desk that morning so, his daily income would have roughly been
$24,000.00 for his days work not bad ay! No wonder WC dont want to pay
the injured victims, their examiners bills are enormous and it seems that all
themoney that should be paid to victims of workplace injuries is being spent
on Barristers and Specialists working for the VWA!. Bugger the Victims!
WC: What if you are running late for the Independent Medical Examination?
It is important that you are on time. You should allow plenty of time to get to
the location of the examination. If you are running late, you should ring
the examiner’s rooms or contact the person who arranged the examination.

Workcover Victims: Its ironic that you as the claimant cannot run late
when they make your appointments in the city and you live in the country.
I for one had two appointments 2 hours apart on the opposite sides of the city
and they say dont run late or your appointment will be cancelled and your
benefits will be lost, but if the examiner is running late you will just have
to put up with that and they wont appoligize for it either, yet we are expected
to crawl up their butts if we are late! again this shows WC's inconsistency
with the injured workers they are supposed to protect.
WC: What if the examiner is running late?
The independent medical examiner is expected to see you on time, but
emergency or unscheduled work may cause delay. The examiner’s
receptionist should let you know how long you may have to wait.
If there is a delay, you should wait at least 30 minutes from the arranged
appointment time (not the time you arrived).
Leaving any earlier may be considered unreasonable and could put your
payments at risk. If you decide to leave after waiting the recommended
time, you should immediately notify the person who arranged the
examination.

Workcover Victims: How is leaving after your appointment time
unreasonable? If we are expected to arrive on time then I expcect the
same respect from WC too!

WC: What will happen at the Independent Medical Examination?
The examiner will ask you a number of questions about your injury during
the examination. These questions may be about:
The medical history of your injury (e.g. what treatment you received and
the results of that treatment)
Your work history (e.g. your duties at the time of your injury, whether you
have returned to work, or your capacity for work)
Treatment you have had or are receiving
Your current symptoms
Your relevant personal or social history
Your daily activities and interests.

WC: As part of the examination, an independent medical examiner may
ask you questions that do not directly relate to your injury. It may be
necessary to ask you in-depth questions about your family and personal
history to better understand your circumstances. These types of
questions are morelikely to be asked by psychologists and psychiatrists.
The independent medical examiner may need to conduct a physical
examination to properly assess your injury. The examiner must obtain
your consent before conducting the physical examination.
You should wear clothing that will allow the examiner to easily examine
your injury. If you are required to remove your clothing for the
examination, the examiner should provide you with a gown or sheet for
cover. If a gown or sheet is not provided, you may ask the examiner to
provide one. Examiners may request that you remove the gown or
sheet during the examination so they can conduct a thorough examination.
The examiner is required to protect your modesty as far as practical.
The examiner may find it necessary to examine other parts of your
body that may not appear to relate to your injury.

Workcover Victims: The examiner is only required to examine your
injury and nothing else. Your personal and family situation is not work
related so dont discuss it with them, it only gives them more to add to
the report and in some cases another excuse to deny you benefits.
Just discuss the work related injury and nothing else.
The examiner has no need to examine any other part of your body,
that is not directly related to the injury! If you are required to have
a physical exam then have your support person present to verify
that the exam given was appropriate!WC: Why would you be asked to attend an Independent Medical
Examination with a psychologist or psychiatrist?
Your Agent or self-insurer may ask you to attend an independent
medical examination with a psychologist or psychiatrist to establish
or review the link between your current circumstances and
your injury. If you are unsure why you were asked to attend a
psychological or psychiatric examination, talk toyour Agent or self-insurer.

Workcover Victims: These examinations are only used to see if the
insurers can say that your injury is not work related. They will attempt
to link your injury to another incident or another health issue that you
may have had particullary if you have a stress claim or bullying claim
so dont share anything not work related. Be carefull with your medical files
and dont consent to WC or any of their representatives gaining access to your
whole medical file only consent to your injury information being accessed.
WC: What is expected of you?
To ensure your claim is managed effectively and efficiently, you should
cooperate with the examiner. You may ask questions during the
examination and if you feel uncomfortable with any part of the
examination, you should tell the examiner.

Workcover Victims: Co-Operating is only telling them work related
information. That what you are there for so dont let them intimidate
you into thinking you are being unreasonable because you choose not
to share unrelated details with them.WC: Who will receive a copy of the report?
The independent medical examiner will prepare a report based on
the examination. The examiner will send a copy of their report to the
person who arranged the examination. If you wish to obtain a
copy of the report, you should request this in writing from the person
who arranged the examination.

Workcover Victims: Rule 101 is get copies of everything related to your injury.
WC: What standard of conduct does the VWA require of the Independent
Medical Examiner? The independent medical examiner has entered into an
Agreement with the VWA.
The Agreement requires the examiner to:
Be polite
Be professional
Be sensitive to your concerns
Obtain your consent to any physical examination before proceeding.

Workcover Victims: These doctors are being paid a fortune to see you
so make sure you are receiving the above treatment from them.
You are entitledWC: What costs can you claim?
You may be entitled to claim the cost of travel and accommodation to
and from the examination.These costs must be approved by your Agent
before you make any arrangements. Talk to yourAgent to find out what
costs you can claim.

Workcover Victims: Claim everything you can, Keep all your receipts.
WC: Who do you contact if you are unhappy with the Independent Medical
Examination? If you have any concerns during the examination,
talk to the examiner. If you are unhappy about the way the independent
medical examination was conducted, discuss your concerns with the person
who arranged the examination.

Workcover Victims: You can try this approach but it will fall
onto deaf ears! If you wish to lodge a complaint about the examination,
you should do one of the following: Complete the form on the back of the
How to make a complaint fact sheet available from the WorkCover
Advisory Service on freecall 1800 136 089 or (03) 9641 1444 or you can
write and phone the following contacts:
VWA222 Exhibition Street Phone
Melbourne VIC 3000
Ph: (03) 9641 1444
Fax: (03) 9641 1353
Freecall: 1800 136 089
Website: http://www.workcover.vic.gov.au/

Rehabilitation and Medical Services Division
Manager - IME Services Branch
Victorian WorkCover Authority
GPO Box 4306
MELBOURNE VIC 3001

Independent Medical Examinations for injured workers and
Registered WorkCover Agents

ALLIANZ Workers’ Compensation
(Vic) Limited
Level 26, 570 Bourke Street,
Melbourne 3000
Ph: (03) 9234 3800
Fax: (03) 9234 3760
Freecall: 1800 240 335

GIO Workers’ Compensation
(Victoria) Ltd
Level 1, 468 St Kilda Road,
Melbourne 3004
Ph: (03) 9860 3555
Fax: (03) 9820 5840
Freecall: 1800 817 969

Cambridge Integrated Services
Victoria Pty Ltd
Level 10, 390 La Trobe Street,
Melbourne 3000
Ph: (03) 9947 3000
Fax: (03) 9947 3005
Freecall: 1800 801 070

QBE Workers Compensation
(Vic) Limited
Level 8, 628 Bourke Street,
Melbourne 3000
Ph: (03) 9246 2444
Fax: (03) 9246 2400
Freecall: 1800 817 820

Gallagher Bassett Services
Workers Compensation Vic Pty Ltd
Ground Floor, 50 Queen Street,
Melbourne 3000
Ph: (03) 9297 9000
Fax: (03) 9297 9010
Freecall: 1800 774 377

CGU Workers Compensation
(Vic) Limited
Level 5, 477 Collins Street,
Melbourne 3000
Ph: (03) 8630 1000
Fax: (03) 8804 9429
Freecall: 1800 066 204

If your Agent or self-insurer makes a decision that you believe is wrong,
partly based on an independent medical examiner’s report, you may take
the matter to the Accident Compensation Conciliation Service (ACCS).

To refer the dispute to the ACCS you must lodge a Request for
Conciliation form, within 60 days of being advised of the decision.
Conciliation is a free service. Request for Conciliation forms are available
from the ACCS and completed forms should be sent to:

Accident Compensation Conciliation Service (ACCS)
Senior Conciliation Officer
Level 9 / 460 Lonsdale Street
MELBOURNE VIC 3000
Freecall 1800 635 960 or (03) 9940 1111

Workcover Victims: Dont expect to much from WC's complaints systems.
I have used all of them now and have had no results from any of them.
They all stick together and none of them will go out on a limb to help genuine
victims of workplace injuries.

I have been writing to Mr Tweedly the CEO of the VWA for sometime
now and have found that he has no concerns for the victims either. He will ignore
your letters of complaints and the contents and he will eventually just refuse to
speak with you, so you think you have no where else to go with your complaints.

After this happening to me, I was advised to write to the Victorian
Ombudmans office and formally complain as apparently the VWA answer
to them so, I did this spending many hours drafting up my complaint and
guess what? They defended the VWA! so, dont expect any Justice from any of these
departments, as you more than likely, wont receive any!

Good luck and don't forget to post your stories.

Finding a cure for compo malaise

2013-04-07T20:34:00.000+10:00

OVER many years spent reporting on public service affairs, I have often been astounded by the workers compensation decisions of the courts.

I've not been alone. Labor and Coalition governments have noted the decisions and attempted to close the loopholes the courts have created in the Safety, Rehabilitation and Compensation Act. As a result we've had 59 amendments to the act since 1988.

But it seems they have not been enough. A review of the act by Melbourne barrister Peter Hanks, QC, and former head of the Defence Department Allan Hawke has proposed a major overhaul to close anomalies they have found. Hopefully, when the government implements these, the act will get back to what it should be - an act that provides for the rehabilitation of injured employees and/or compensates employees for injuries sustained at work.

Following the review, media attention focused on efforts to curb the dubious claims for psychological injuries and Comcare payments for unconventional therapies

But Hanks also proposes tightening the provisions covering the payments for heart attacks and strokes.

Originally, he says, Comcare and other determining authorities did not accept liability for heart attacks and strokes that occurred at the workplace unless employment contributed to the underlying disease. A heart attack or a stroke was treated as a manifestation of a ''disease''. Liability to pay compensation was only accepted where employment had contributed to the disease (or its aggravation) to a material degree.

To a lay person like me, this sounds sensible.

But not to the courts. Hanks noted that in 1998 that position was rejected by the full Federal Court, which followed a High Court decision from 1996, dealing with equivalent provisions in the NSW act. The High Court held that a cerebral hemorrhage was an ''injury'', not a ''disease'', under the NSW legislation; and the Federal Court held that a heart attack was an ''injury'', not a ''disease'', under the Commonwealth act.

On these interpretations, if the ''injuries'' occurred at the workplace (and therefore ''in the course of employment''), the employer was liable to pay compensation, regardless of whether employment contributed to the ''injuries''.

So let's speculate on this. Imagine a bloke who has smoked heavily for years and at age 45 gets a job with the Commonwealth where he works happily in a low stress environment. Then one day he has a heart attack. According to the High Court, Comcare must pay out for his ''work injury''. You need years of legal training to come up with such nonsense.

There have been a succession of equally ludicrous court decisions on psychological injury.

It is enough for an employee to ''perceive'' that something happened in his or her employment to justify a claim of psychological injury. It doesn't matter whether the perception was reasonable or reflected reality.

Hanks proposes changes to the act that would, in his words, introduce a ''modest degree of rigor ' in the processes. An employee's perception of a state of affairs would only carry weight where that perception had a reasonable basis. ''It is an unfair burden on employers to make them liable to pay compensation for a psychological injury that is caused by an employee's fantasizing rather than by any aspect of employment,'' he says.

Who could disagree with that?

Compensation for psychological injuries would continue beyond 12 weeks only where the diagnosis of those psychological injuries had been made or confirmed by a psychiatrist, a clinical psychologist, or a general practitioner who has completed mental health training to a standard approved by Comcare.

Hanks points out that between 2006-07 and 2009-10, psychological injury claims accounted for 10 per cent of all claims, but in 2010-11 this rose to 12 per cent of all claims, and 32 per cent of the total cost of claims. In 2010-11 the average duration of incapacity for employees with claims for psychological injuries was 12.3 months, compared with falls and slips keeping people out of work for 4.1 months or vehicle incidents 3.2 months.

One of the major problems in the public service is how to deal with difficult individuals with psychological problems. Anyone working in the service for more than a year will know of people who perceive they have been done all sorts of injustices over many years from a whole variety of managers and colleagues. These individuals have a serious negative impact on productivity. The court records show that some disputes go on for decades.

Conflicts and personality clashes arise in every workplace. Sometimes an individual is victimized or bullied by a manager. This can often be resolved by separating the warring parties. In a new environment, reasonable individuals can carve out new happy relationships and get on with the job.

But some individuals, after a short time, are back in conflict. Often the Employment Services Scheme will be called into play, with outside counselling of the employee. It seems that psychiatrists are able to put labels on the conditions - depression, obsessive compulsive, paranoia - but finding a ''cure'' is another matter.

If the pattern is repeated time and time again and the individual can find no one they can get along with, some action has to be taken.

In the end, for the sake of the workplace, termination of employment is the only answer.

But while this may solve a department's internal problem, it can exacerbate the individual's mental condition and may even provoke an unwelcome response, as seen in violent incidents around the world.

Sadly some individuals, unable to change their ways will end up lonely and in long-term unemployment.

Have you been served by WorkCover?

2013-03-26T15:25:00.000+11:00

Gadens Lawyers
Stephanie Nicol and Meryl Remedios
Australia
March 25 2013

Author page »

A recent decision has created chaos for WorkCover in the District Court of New South Wales.

In this decision¹ proceedings against Built (NSW) Proprietary Limited (Built), under the now repealedOccupational Health and Safety Act 2000 (NSW) (OHS Act), were dismissed on procedural grounds.

Notice

Built filed a Notice of Motion to quash the Application to Commence Proceedings and the Summons in the matter on the basis that:

the proceedings were started by a person who was not authorised to do so; and
the Summons did not allege an offence known to law.

Built’s success in this decision has significant ramifications for other matters commenced by WorkCover in the District Court that share the same procedural deficiencies, especially where WorkCover is precluded by statutory time limits from recommencing or changing proceedings.

Application

Built sought an order quashing the Application on the basis that the it did not fulfil the procedural requirements of the OHS Act, which required the proceedings to be instituted:

with the written consent of a Minister of the Crown;
with the written consent of an officer prescribed by the regulations to the OHS Act;
by an inspector; or
by the secretary of a union whose members are concerned in the matter to which the proceedings relate.

Built also argued that the Summons was defective because it did not comply with the Criminal Procedure Act 1986 (NSW) (CP Act), which when read with the District Court Rules 1973 (NSW) (Rules), required the proceedings to be instituted by an inspector and the Summons and statement of facts to be signed by the inspector as the prosecutor.

The Court considered whether, in the context of safety prosecutions, an extended meaning of ‘prosecutor’ was permitted to include ‘an Australian legal practitioner representing the prosecutor’. Given the personal responsibility of inspectors prescribed by the OHS Act and the parliamentary intention of the CP Act and Rules, Curtis J held that the signature of the prosecutor was required to satisfy the relevant Rules. Due to this procedural deficiency, the proceedings were not brought in accordance with the OHS Act and were void.

Summons

The Court also considered the second part of Built’s application, which argued that the Summons did not allege an offence known to law.

The Summons charged that the defendant, ‘being an employer…failed by its acts and/or omissions…to ensure the health, safety and welfare at work of persons other than its employees…contrary to section 8(2)’ of the OHS Act.

Built argued that the charge did not disclose an offence punishable by law because:

section 8(2) of the OHS Act did not simply require an employer to ensure the safety of persons other than its employees at work. Rather, section 8(2) required an employer to ‘ensure that people (other than employees of the employer)’ were ‘not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking, while they are at the employer’s place of work’; and
the charge did not recite the necessary ingredient relating to risks ‘arising from the conduct of the employer’s undertaking’.

The Court found that there was a possibility that WorkCover had intended to charge the defendant pursuant to section 8(1) (which involved duties of employers in relation to ‘work’), rather than under section 8(2) (which involved duties of employers in relation to their ‘undertaking’), but had erred. After considering the applicable provisions of the CP Act, the Court found that the charge was uncertain and ambiguous, and therefore defective, because it identified two possible offences.

Appeal by the Attorney-General of New South Wales

The decision of Curtis J is now the subject of an appeal by the Attorney-General of New South Wales in the Supreme Court – Court of Criminal Appeal. The appeal proceedings are listed for hearing on 28 May 2013.

In the interim, the safety prosecutions currently before the District Court that share the same procedural deficiencies as identified in the Built decision have been adjourned.

Implications for organisations

The Built decision reinforces the importance of strict compliance with procedural requirements in litigation and the need to consider any application and summons carefully.

Where the time limit for commencing proceedings has not yet expired, it is open to WorkCover to discontinue proceedings and recommence them in the correct form.

In all other affected proceedings, if the Built decision remains good law, we anticipate that defendants may bring a motion to have their proceedings struck out.

Organisations with prosecutions on foot in the District Court should seek advice about the ramifications of the Built decision on their case and should carefully monitor the status of the Built appeal.

Who Did and Did Not Receive Workers Compensation 2009-10

2013-03-19T17:29:00.004+11:00

Who Did and Did Not Receive Workers Compensation 2009-10 (1) by workcovervictim8242

Speech on the National Disability Insurance Scheme

2013-03-18T16:10:00.001+11:00

Bill to stop workplace bullies

2013-03-16T16:01:00.002+11:00

Julia Gillard launches the Bully Free Australia Foundation in Melbourne. Photo: Mal Fairclough

Victims of workplace bullying will be able to go to Fair Work Australia to seek an order preventing the offender from continuing to harass or intimidate.

At the launch of Bully Free Australia Foundation at Essendon Fields on Saturday, Minister for Employment and Workplace Relations Bill Shorten announced the new bill will be introduced to the House of Representatives next week.

He said the new laws would "make [bullying] a problem that is dealt with by workplace laws for the first time ever".

The new provision will come into effect on July 1.

Prime Minister Julia Gillard said bullying victims would be able to have their complaints heard "quickly and afford-ably , with the focus of the investigations being to stop bullying before it "goes too far".

She said the government was "determined" to join the growing movement to stop bullying in schools and workplaces.

In 2012, more than 2500 people committed suicide in Australia, including 450 children. In more than 80 per cent of cases, bullying was a contributing factor.

In July, Melbourne will host a national anti-bullying forum for legal and education experts focusing on young people facing bullying.

A Productivity Commission report into workplace bullying estimated it cost the national economy between $6 billion and $36 billion annually due to lost productivity.

Alannah and Madeline Foundation CEO Judith Slocombe used the third annual National Day of Action Against Bullying and Violence to call on the states and territories to introduce consistent anti-bullying laws.

On Friday, the state government launched a $4 million anti-bullying campaign asking students to sign a pledge to stamp out bullying in schools. The Bully Stoppers campaign includes grants for up to 200 schools to introduce their own anti-bullying programs.

Brothers Ross and Darren Bark, who created a short film and educational program about bullying called Best Enemies, have joined with the Bully Free Australia Foundation to promote the cause.

Ross Bark said their workshops and the work of the foundation are designed to "prevent these horrible circumstances of bullying from happening to begin with rather than waiting for them to occur and picking up the pieces. That is too late - the damage is done, and we are saying enough is enough".

Lindberg's rocky road at WorkCover

2013-03-12T14:38:00.004+11:00

WCVV: Why wasn't he held accountable for the damages he has caused to those injured workers excluded from making a workcover claim due to the lies he Hallam and Kennett told our Federal Parliament?

Why didn't the Attorney General investigate this?

Its been 7 yrs and nothing has been done to make him Hallam or Kennett explain why they chose to lie about workcovers financial position?

Story by: By Mathew Murphy
January 20, 2006

AWB supremo Andrew Lindberg quit as WorkCover chief when Steve Bracks was elected Premier.
Photo: Andrew Meares

AWB managing director Andrew Lindberg was a controversial head of the Victorian WorkCover Authority during the 1990s.

In 1999 the then Labor state opposition accused Mr Lindberg in Parliament of spending large amounts of the authority's money on entertainment and travel.

Rob Hulls, then shadow WorkCover minister and now Attorney-General, produced documents showing Mr Lindberg spent $34,646 on entertainment, transport and accommodation, locally and overseas, while heading WorkCover from 1992 until 1998.

It was also reported at the time that Mr Lindberg had spent more than $100,000 on overseas and interstate trips over five years while with the authority.

Mr Hulls told The Age at the time that Mr Lindberg lived "a lifestyle that would make Australia's richest 200 people blush."

The besieged WorkCover chief resigned in November 1999, a month after Steve Bracks was sworn in as Premier, citing an inability to work with the new Government. That was not surprising: as opposition leader, Mr Bracks had gone after Mr Lindberg, calling for his head in July that year.

Mr Bracks attacked Mr Lindberg for "arrogantly and quickly" dismissing a key recommendation by a royal commission into the 1998 Longford gas blast that a major hazards unit should be established separate to WorkCover.

Trade union leaders also condemned Mr Lindberg, saying WorkCover had fallen apart while he was at the helm.

Leigh Hubbard, who was Victorian Trades Hall secretary at the time, was among the chorus who welcomed his resignation.

Yesterday, Mr Hubbard described Mr Lindberg as a "divisive and dogmatic" WorkCover leader who had failed to consult others. "Andrew was quite schizophrenic in the way that he was quite personable on one hand then was wanting to drive through an agenda without talking to anyone," he said. "Granted, that that was under (Jeff) Kennett."

"He appears to have inherited this new problem with AWB and run with it," Mr Hubbard said.Mr Lindberg's 1999 resignation from WorkCover came a week after the authority announced a budget blow-out of $176 million for the previous year.

Mr Lindberg joined AWB in 2000, taking with him a number of his WorkCover colleagues, including director of public affairs Eileen McMahon.

PSA - WCover Review Final

2013-03-12T14:24:00.002+11:00

PSA - WCover Review Final by

Workcover stress claims by workers

2013-03-12T14:14:00.001+11:00

Victorian WorkCover legislation underwent a significant overhaul earlier
this year.

Significant amendments to that legislation have significantly increased worker's rights to no fault compensation, including extended weekly benefit periods and lump sum amounts that can be claimed by injured workers.

WorkCover costs to employers will invariably increase as a result.

An important aspect of the WorkCover legislation amendments affects the ability for workers to claim WorkCover benefits resulting from mental injuries, principally stress claims.

Under WorkCover legislation reforms introduced by our then Premier, Jeff Kennett, the right of workers, who had suffered a mental injury, was lost where the injury was found to have arisen wholly or predominantly from reasonable action taken in a reasonable manner by the employer to transfer, demote or dismiss the worker.

Under the reforms of earlier this year, a WorkCover insurer may now reject liability for a mental injury where the injury arose wholly or predominantly from multiple actions, rather than an isolated incident, if any action taken by the employer that caused the injury is reasonable.

The lesson for employers is to ensure that actions undertaken by the employer in relation to its workers, including actions relating to counselling, promotion, demotion or termination, are conducted in a reasonable fashion and in a reasonable manner.

A further lesson for employers is to ensure that if a worker lodges a WorkCover claim, it provides promptly a comprehensive brief to their insurer of all relevant facts and circumstances surrounding the alleged injury.

In addition to providing a comprehensive brief, we recommend that you follow up the WorkCover insurer on a regular basis to ensure that they are conducting all aspects of their investigation promptly and comprehensively.

If these simple rules are followed, employers will minimize the risk of a WorkCover claim being accepted, particularly in the case of work related mental injury claims.

WCVV: This has only been posted to show injured workers how lawyers are supporting their employers to minimize injured workers claims..

It will also help injured workers see how their employers may behave during their claims.

Explanation of Adjustment Disorders.

2013-02-06T20:42:00.000+11:00

Adjustment disorder

In psychology, adjustment disorder (AD) is a classification of mental disorder
that is a psychological response from an identifiable stressor or group of
stressors that causes significant emotional or behavioral symptoms that does
not meet criteria for more specific disorders.[1] The condition is different from
anxiety disorder which lacks the presence of a stressor, or post-traumatic stress
disorder and acute stress disorder which usually are associated with a more
intense stressor.

There are nine different types of adjustment disorder listed in the DSM-III-R.
In DSM-IV, adjustment disorder was reduced to six types, classified by their
clinical features. Adjustment Disorders may also be acute or chronic, depending
on whether it lasts more or less than six months. Diagnosis of adjustment
disorder is quite common; there have been reports of it being a common and
serious condition among adolescents and it has estimated incidences of 5-21%
in psychiatric consultation services for adults. In clinical samples of adults,
women are given the diagnosis twice as often as men.

Adjustment disorder link to suicideSuicide behavior is prominent among AD patients of all ages and up to one fifth
of adolescent suicide victims may have an adjustment disorder. Bronish and
Hecht (1989) found that 70% of a series of patients with AD attempted suicide
immediately before their index admission and they remitted faster than a
comparison group with major depression. Asnis et al. (1993) found that AD
patients report persistent ideation or suicide attempts much less frequently
than those diagnosed with major depression.

Treatment
The primary treatment for adjustment disorder is talking. This reduces the
pressure of the stressor and enhances coping. It allows the patient to put his
or her rage into words rather than into destructive actions. Counseling,
psychotherapy, crisis intervention, family therapy, and group treatment are
often used to encourage the verbalization of fears, anxiety, rage, helplessness,
and hopelessness. Sometimes small doses of antidepressants and anxiolytics
are also used. In patients with severe life stresses and a significant anxious
component, benzodiazepines are used, although triccyclic antidepressants or
buspirone has been recommended for patients with current or past heavy
alcohol use because of the greater risk of dependence. Tianeptine, alprazolam,
and mianserin were found to be equally effective in patients with AD with
anxiety.

StressorsA stressor is generally an event of a serious, unusual nature that an individual
or group of individuals experience. It should be mentioned that the stressors
that cause Adjustment Disorders are not extreme events which are in the
criteria for Post-Traumatic Stress Disorder. They may be grossly traumatic
but may also be apparently minor, like loss of a boyfriend/girlfriend, a poor
report card, or moving to a new neighborhood. It is thought that the more
chronic or recurrent the stressor , the more likely it is to produce a disorder,
yet this is modified greatly by the support the patient receives from those
around him or her. Stressors believed to involve a loss usually have particular
significance like an interpersonal failure, physical or sexual abuse, cognitive
impairment, a lengthy duration of frequent recurrence, or cognitive
uncertainty. The objective nature of the stressor however, is of secondary
importance. Stressors' most crucial link to their pathogenic potential is their
perception by the patient as stressful. Patients that face a stressor with
enthusiasm and view it as a challenge are much less likely to develop a
disorder.

Risk factorsFactors that are intrinsic toward the development of Adjustment Disorder
include age, gender, ego development, past experiences and coping skills. Age
can be a factor because young children have fewer coping resources, however
they are less likely to understand a stressor as stressful and are thus less likely
to develop a disorder. Men have been shown to be more vulnerable to stressors
across all ages and types of stressors, for unknown reasons. A poorly developed
ego is also a factor that could make one more vulnerable to this disorder,
whether it is caused by cerebral impairment or upbringing. Those damaged by
repeated trauma also are at greater risk, even if that trauma is in the distant
past.

Coping
One important factor that dictates the extent of the emotional or behavioral
symptoms displayed in Adjustment Disorder is their method of coping with the
stressors. Coping is defined as the strategies and mechanisms that people use
to modify their environment or reduce internal distress. Coping is generally
organized into four categories.
The first category includes all efforts to practically handle stressors. This category
contains two subcategories of problem-focused coping, which is the practical
and physical dealing with stressors by actively problem solving, and restraint,
which is waiting for an appropriate opportunity to act.

The second category includes cognitive or internal strategies. This involves
avoiding, minimizing, distancing, or seeking value in negative events.
The third category includes efforts to diminish stress by utilizing available
situational or environmental factors. The most commonly investigated
mechanism in this category is social support.

The fourth category includes personal approaches or individuals' cognitive
orientations. This category includes constructs such as an individual’s
hardiness, sense of coherence, and locus of control.

Many studies have been done, documenting the effectiveness of various
activities in coping with stressful situations. The effective activities included
internet and computer based entertainment, watching television and
listening to music.

From Wikipedia, the free encyclopedia

Symptoms
The signs and symptoms of adjustment disorders vary from person to person.
The symptoms you have may be very different from those of someone else
with adjustment disorder. But for everyone, symptoms of an adjustment
disorder begin within three months of a stressful event in your life.

Emotional symptoms of adjustment disordersSigns and symptoms of adjustment
disorder may affect how you feel and think about yourself or life, including:
§ Sadness
§ Hopelessness
§ Lack of enjoyment
§ Crying spells
§ Nervousness
§ Thoughts of suicide
§ Anxiety
§ Worry
§ Desperation
§ Trouble sleeping
§ Difficulty concentrating
§ Feeling overwhelmed

Behavioural symptoms of adjustment disordersSymptoms of adjustment
disorder may affect your actions or behaviour, such as:
§ Fighting
§ Reckless driving
§ Ignoring bills
§ Avoiding family or friends
§ Poor school or work performance
§ Skipping school
§ Vandalism

Length of symptomsHow long you have symptoms of an adjustment disorder
also can vary:
§ Six months or less (acute). In these cases, symptoms may go away on their
own, especially if you actively follow self-care measures.

§ Longer than six months (chronic). In these cases, symptoms continue to
bother you and disrupt your life. Professional treatment can help symptoms
improve and prevent the condition from continuing to get worse.

Types of adjustment disordersYour health care provider may ask detailed
questions about how you feel and how you spend your time. This will help
him or her pinpoint which specific type of adjustment disorder you have.
There are six main types of adjustment disorders. Although they're all related,
each type of adjustment disorder has certain signs and symptoms.

The six types are:

§ Adjustment disorder with depressed mood. Symptoms mainly include
feeling sad, tearful and hopeless, and a lack of pleasure in the things you
used to enjoy.
§ Adjustment disorder with anxiety. Symptoms mainly include nervousness,
worry, difficulty concentrating or remembering things, and feeling overwhelmed.
Children who have adjustment disorder with anxiety may strongly fear being
separated from their parents and loved ones.
§ Adjustment disorder with mixed anxiety and depressed mood. Symptoms
include a mix of depression and anxiety.
§ Adjustment disorder with disturbance of conduct. Symptoms mainly
involve behavioral problems, such as fighting, reckless driving or ignoring
your bills. Youngsters may skip school or vandalize property.
§ Adjustment disorder with mixed disturbance of emotions and conduct.
Symptoms include a mix of depression and anxiety as well as behavioral problems.
§ Adjustment disorder unspecified. Symptoms don't fit the other types of
adjustment disorders but often include physical problems, problems with
family or friends, or work or school problems.

Lifestyle and home remedies
When you face a stressful event or major life change, you can take some steps
to care for your emotional well-being. Do what works for you. Some examples
include:
§ Talking things over with caring family and friends
§ Trying to keep eating a healthy diet
§ Sticking to a regular sleep routine
§ Getting regular physical activity
§ Engaging in a hobby you enjoy
§ Finding a support group geared toward your situation
§ Finding support from a faith community

Preparing your Claim

2012-11-27T21:43:00.003+11:00

Preparing your Claim

When you go along to see your lawyer, save time (and money) by bringing along the following:

Very specific details as to how the accident occurred, in point form;
Photographs of the accident scene if these can be obtained safely;
All relevant medical reports;
Receipts for any out of pocket expenses like crutches, medication or GP gap payments;
A travel log of all the times you have traveled to an appointment due to your injuries;
Details of all of the doctors you are currently consulting;
Your record of how your life has been affected by the accident (i.e. list tasks you can't perform, it could be hanging out the washing etc);
If you have already made a claim, the details of the insurance claims officer dealing with your claim;
Your car registration details and that of any other vehicle involved;
Witness details (i.e. witnesses who saw the accident occur);
Who said what to whom; and
NEVER admit fault. Some insurance policies have this as a specific requirement, and you can void your insurance if you do admit fault.

Time limitations on Claims

Don't wait too long to contact a lawyer to find out about your compensation rights. Time limits apply to all types of claims!

In respect of transport accident claims or WorkCover claims, it is often thought that the time limit that applies is 6 years. Whilst there is a 6 year time limit which applies, to either receive a lump sum impairment benefit, commence a serious injury application or commence common law proceedings, there are other relevant time frames which are equally as important. For example, there are strict time limits which apply to the actual lodging of claims under the statutory schemes. There is a 12 month time limit. If the claim is not lodged within that time, then eligibility to all entitlements, no-fault or common law, may be lost!

In other areas, for example medical negligence, public/occupiers liability and product liability, a 3 year time limits applies.

A lawyer who is a specialist in the area of personal injury law can talk to you about the time limits which are relevant to your particular matter. It is important to not delay and seek some preliminary advice as soon as you are able to do so.

In some instances, if you have missed a deadline, there is the ability to seek an extension of time through the Courts. It is not automatic that the Courts will extend time, but in certain circumstances it is possible. Often, an application to extend time is costly and very involved. Nevertheless, a lawyer who specialises in this area will be able to advise you of the relevant considerations and assist to steer your in the right direction.

Litigation Funding

Litigation funds operate by lending you the money required for your case as it progresses. They do not cover any costs that may be awarded against you. They either receive a proportion of anything that you win in your case or they charge you an interest rate that reflects the risks involved for them.
Law Society

Law Institute of Victoria Law Aid is designed to improve access to justice in Victoria for members of the public who are unable to afford the cost of civil litigation.
Law Aid is available only for civil litigation. The types of civil litigation, which will be funded, include:

· A substantial personal injury claim.

· Claims against institutions involving oppressive behaviour.

· Loss or destruction of property claims.

· Professional negligence claims.

· Wills and estate claims.

It is not available for criminal matters orfamily law matters.
Private Funding

There are private companies that will "back" similar cases to the Law Society, and also Family and De Facto matters. See your solicitor to see if they have arrangements with any of these companies.

Choosing you Lawyer

Never choose a lawyer on the basis of a "Free First Interview".

There is little cost in seeing a solicitor of your choice to find out if you have a case worth pursuing or whether it is the sort of case that you should handle yourself.

If you have a serious case, the cost of the first interview is "the tip of the iceberg".

Many personal injury lawyers offer "No Win - No Charge" or "No Win, No Fee" legal services when they believe that a case is reasonably likely to be successful.

It is not a free service. When a successful outcome is achieved (i.e. you are awarded money or perhaps another benefit of some kind), a success fee, or contingency fee is also usually applied. Read through the agreement between you and your lawyer carefully and discuss any questions you may have with your lawyer.

Again, never choose a lawyer on the basis of a "No Win No Fee" arrangement. Choose the best lawyer for you and discuss the issue of costs with them.

2012-11-27T21:31:00.003+11:00

Australian bullying law

This page outlines the shape of Australian law about bullying.

It covers -

The following pages discuss specific cases that illustrate that law, highlight damages awards and identify some landmarks in Australian bullying litigation.

introduction

As indicated in preceding pages, the conceptualisation and acceptability of bullying in Australian law has varied significantly over time: what was considered in the 1850s, 1900s or 1950s to be unremarkable is now often penalised.

Legal frameworks regarding bullying are diverse. There is no single national anti-bullying statute and no definitive nationally-acceptable legal characterisation of what constitutes bullying. The federal nature of law in Australia means that recognition of bullying varies from jurisdiction to jurisdiction. Targets of bullying accordingly rely on a range of statute and common law in dealing with the problem.

Legal responses to bullying have essentially taken three forms.

The first is action by the state, acting on behalf of targets and the community in addressing egregious abuses (primarily under criminal law).

That action is generally punitive and provides little or no compensation for targets. It may punish perpetrators and deter future offenders buy does not necessarily provide any compensation for suffering experienced by the target and his/her associates.

The second response is action by targets, for example suing the perpetrators of bullying in order to stop the particular offence, gain some compensation for suffering and send a signal to potential offenders.

The third response is articulation of industry codes, best practice statements or statements of principle, such as the WorkSafe Western Australia 2006 Code of Practice: Violence, Aggression and Bullying at Work and the WorkSafe Victoria 2005 Guide to Managing OHS in Community Services.

In practice those statements may be ignored by perpetrators and by the employers of perpetrators (commitment by the Australian Defence Force to recurrent aspirational statements is questionable). However, they are important as a mechanism for ensuring that organisations are aware that bullying in the workplace or schools is unacceptable. They may also be tied to statutory insurance schemes, with some workplace insurance not covering organisations that have failed to protect employees under occupational health & safety legislation.

remedies

Legal remedies in Australia have included action under -

Anti-Discrimination Legislation
Common Law (eg for physical and/or psychological injury)
Constructive Dismissal aspect of Industrial Relations Law
Occupational Health & Safety Law
Workers Compensation schemes
Criminal Law

Those remedies reflect expectations about individual responsibilities and restrictions on things such as assault and workplace discrimination. Sodomising a cadet as part of military hazing, setting fire to an apprentice as part of workplace initiation or leaving pork chops in a Muslim colleague's locker is frowned on; physical injury may be rewarded by criminal sanctions against the perpetrator. The bullying that occurs among university academics and in the professions may simply go unreported and be accepted as appropriate industrial discipline aka professional practice.

They also reflect expectations about duties of care and recognition that employers may be in a position to prevent particular abuses or track malpractice (for example articulate and implement a policy that prohibits use of a corporate network for sending/receiving obscene, defamatory or threatening content). Notions of teacher and employer responsibility are evident in New South Wales v Lapore; Samin v Queensland; Rich v Queensland[2003] HCA 4.

Remedies are inevitably an area of disagreement in Australian law.

One reason is that the scale of compensation for many offences (and penalties on the perpetrators of those offences) is low. Some targets will accordingly seek to use tort law (particularly regarding physical and psychological injury) rather than Commonwealth or state/territory anti-discrimination law, which in practice is somewhat toothless.

Another reason is the cost of personal litigation in Australia. As mentioned elsewhere in this note, it is likely that some targets have been deterred by the financial cost (solicitors, barristers, expert witnesses) and emotional cost (time, stress) associated with taking perpetrators and bystanders to court. That cost is particularly significant if any compensation awarded turns out to be lower than the target's legal fees.

Not all litigation is successful. In the UK, for example, Becky Walker was unsuccesful in action against Derby County Council, being awarded to ordered to pay the Council's costs (estimated at £30,000). The judge in that case revealed that if she had won she would only have been awarded £1,250 ... far less than her own costs, which would have been upwards of £15,000.

discrimination law

The Commonwealth and state/territory governments have established a range of statutes regarding discrimination in the workplace and other environments, reflecting expectations about human rights.

Those statutes recognise that some discrimination is legal (eg blind people and their guide dogs cannot pilot passenger aircraft). They also seek to prevent and punish illegal discrimination, ie discrimination in employment, finance, access to facilities and so forth based inappropriately on attributes such as gender, sexual or religious affinity, age and ethnicity.

Courts have acknowledged that bullying may embody discrimination, with someone for example being targeted on the basis of faith, ethnicity or identity as a GLBT person. Targets can thus potentially deploy discrimination law to address bullying, typically through a mediation process in the first instance and thereafter through a court.

Courts have also acknowledged that an organisation's response to bullying - in particular a failure to respond - may be subject to discrimination law. One example is FP and FQ on behalf of FR v Department of Education & Training; FP v Department of Education & Training [2003] NSWADT 68 (17 April 2003).

Primers include Discrimination Law & Practice(Leichhardt: Federation Press 2004) by Chris Ronalds & Rachel Pepper. Other works are highlighted here.

workplace safety law

State/territory 'workplace safety' or 'occupational health & safety' (OH&S) law covers relationships in the workplace, including those in factories, educational institutions and professions.

It typically imposes a duty on employers to ensure the health, safety and welfare at work of all employees. That duty has been interpreted broadly - in for example Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 - and encompasses systems of work and the working environment, including supervision and instruction.

The expectation is that employers are responsible for what takes place within the workplace and thus, for example, cannot comprehensively escape liability by claiming that they were unaware of what managers were doing to subordinates or staff were doing to each other.

The salient legislation is -

Occupational Health & Safety (Commonwealth Employees) Act 1991(Cth)
Occupational Health & Safety Act 1989(ACT) - here
Occupational Health & Safety Act 2000(NSW) - here
Workplace Health & Safety Act 2007 (NT) -here
Workplace Health & Safety Act 1995 (Qld) - here
Occupational Health, Safety & Welfare Act 1986 (SA) - here
Workplace Health & Safety Act 1995 (Tas) - here
Occupational Health & Safety Act 2004(Vic) - here
Occupational Safety & Health Act 1984(WA) - here

In applying those statutes courts have accepted characterisations of bullying highlighted in preceding pages of this note, for example WorkCover Victoria's characterisation of workplace bullying as "repeated, unreasonable behaviour directed towards an employee or group of employees that creates a risk to health and safety" and the NSW Law Society's

behaviour that intimidates, offends, degrades, insults or humiliates a worker, possibly in front of co-workers, clients or customers and which includes physical or psychological behaviour.

As the following page indicates, OH&S legislation has been used to address instances of bullying, with financial penalties for those who directly abused people in the workplace and for company directors or managers who were not directly involved in that abuse but who turned a blind eye to bullying.

It is typically complemented by statutes that mandate workplace insurance, including -

Workers Compensation Act 1951 (ACT) -here
Workplace Injury Management & Workers Compensation Act 1998 (NSW) - here
Workers' Rehabilitation & Compensation Act (NT) - here
Workers' Rehabilitation & Compensation Act 2003 (Qld) - here
WorkCover Corporation Act 1994 (SA) -here
Workers Rehabilitation & Compensation Act 1988 (Tas) - here
Workers Compensation Act 1958 (Vic) -here
Workers' Compensation & Injury Management Act 1981 (WA) - here

That legislation is significant because it may feature caps on damages awards.

     industrial relations law

Most Australians are employed under contract law (an agreement specific to the relationship between the employer and employee) or under an enterprise/industry agreement (covering some/all employees as a class of people).

Irrespective of OH&S protection, industrial relations law covering such agreements is relevant because bullying - exacerbated by indifference on the part of the employer - may become so unbearable as to force an individual to resign from their job. That undesired departure (which on occasion means the individual forgoes share option vesting opportunities, loses sick/holiday leave or becomes unemployed) can be characterised as constructive dismissal and potentially allow the person to claim compensation under industrial relations law and contract law.

One example is Dillon v Arnotts Biscuits (1997) AIRC, discussed in the following page, where the court found that incessant bullying by a manager had resulted in constructive dismissal through the empoyee's resignation. Another example is Police Service of NSW v Batton[2000] NSWIRComm 79, where a detective was victimised for whistleblowing after refusing a bribe from a colleague, thereafter being incapacitated through a psychiatric disorder that forced his retirement.

     common law

Much injury - whether physical or psychological - in Australia is dealt with through common law, ie by courts ruling on the basis of precedent provided by decisions in earlier courts or superior courts.

Common law has traditionally provided little, if any, protection against harassment. It does however address injury. Targets of bullying may thus use common law in seeking compensation for physical injury (eg scarring incurred through a workplace hazing) and loss (eg destruction of personal property) or for psychological injury incurred through bullying in the workplace, as a student or other environments such as participation in a team sport.

Points of entry to the literature include Law of Torts 3 ed (Sydney: Butterworths 2004) by Balkin & Davis, Torts: Cases & Commentary 5 ed (Sydney: Butterworths 2002) by Harold Luntz & David Hambly, Luntz' Assessment of Damage for Personal Injury and Death: General Principles ( Chatswood: LexisNexis Butterworths 2006), Damages for Psychiatric Injury (Leichhardt: Federation Press 2004) andEmployer Liability for Workplace Trauma(Aldershot: Ashgate 2002) by Des Butler, andStewart's Guide to Employment Law(Leichhardt: Federation Press 2008) by Andrew Stewart.

Common law may also provide protection (and potential damages) in relation to employment contracts, with employers for example being held to have made a commitment to a bullying-free workplace through an employment contract and an associated human resource manual or code of practice. One instance is the decision in Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120, where the Full Federal Court upheld a substantial damages award to Nikolich over breach of contract in the finance sector. That case is discussed in the following page.

     criminal law

Criminal law is discussed in more detail here. It encompasses offences such as -

theft
assault (including threats and physical contact)
unauthorised confinement
destruction of property

and other matters that are addressed by the state.

other

It is useful to recognise that bullying on occasion involves action that may be more appropriately addressed as another offence. Persistent harassment via SMS, email and phone calls might for example be dealt with asstalking, covered under state/territory anti-stalking legislation such as the Crimes Act 1900 (ACT).

State/territory governments have on occasion, albeit with little publicity, withdrawn authorisation of organisations/individuals to train apprentices, for example under theVocational Education & Training Act 1990 (Vic).

Australian courts have not held intermediaries (such as Telstra, Australia Post, MySpace and BigPond) responsible for bullying when those entities have been unaware that bullying is occurring.

Australian cases 1

This page illustrates the Australian bullying regime by highlighting some litigation.

It covers -

Cox v NSW
Maddaford v Coleman
Dillon v Arnotts Biscuits
Batton v NSW Police Service
Worksafe Victoria v Ballarat Radio
McKenna v Victoria Police
Blenner-Hassett v Murray Goulburn Co-operative
Arnold v Midwest Radio

Cox v NSW

Cox v State of New South Wales [2007] NSWSC 471 - here

Cox is the leading case on school responsibility for bullying of children by their peers, with educational institutions and authorities owing a duty of care to students.

The NSW Supreme Court awarded $220,000 for pain and suffering to 18-year-old Benjamin Cox after finding that the NSW state Education Department had failed in its duty of care todeal with ongoing bullying. Cox's mother Angela had sued NSW on his behalf, claiming bullying, which started in infants school and continued in later years, had resulted in her son having little education and being unable to work.

The court heard that, while at Woodberry Public School in 1994 and 195, Cox was hit and choked by an older boy (an attack recognised through compensation from the Victims Compensation Tribunal). His mother reported the events - one Education Dept representative reportedly commented that “bullying builds character and that he thought it was a good thing that Ben got bullied" - but the bullying continued, with the perpetrator reportedly stating "It was funny how the police came to my house. And if they come again, I’ll threaten to kill you".

By the time he started high school Cox reportedly thought school a "scary proposition" and became a recluse. "He didn't like crowds, he didn't like teachers, didn't like the work". He had only completed schooling up until the end of year 7. An attempt at home schooling had failed. His mother said he rarely went out, had no friends, "just locks himself in his room playing PlayStation games", and was unable to hold down a job.

Simpson J commented that the school's responses to Mrs Cox’s repeated reports were dismally inadequate.

This was not a case of attempting to prevent something which may or may not have occurred; what was called for were steps that would eradicate a known course of conduct.

She concluded that Cox's

adolescence has been all but destroyed; his adulthood will not be any better. He will never know the satisfaction of employment. He will suffer anxiety and depression, almost certainly, for the rest of his life. He is unlikely to form any relationships, romantic or platonic. He has no friends and is unlikely to make any.

NSW was ordered to pay Cox's legal costs.

Dillon v Arnotts Biscuits

Dillon v Arnotts Biscuits Ltd AIRC No. 31680 of 1997 (10 September 1998)

Dillon provides an example of constructive dismissal attributable to bullying.

Ms Dillon was employed by Arnotts Biscuits Limited as a packer, ie on the production line rather than in an office. She had faced ongoing bullying by her supervisor, "to the point of reducing her to tears". After returning to the factory from a work-related illness she was assigned to an isolated workstation by herself, facing a blank wall with her back to her fellow employees. The supervisor was said to have singled her for ‘special treatment’ to “toughen her up”.

In response to what the Australian Industrial Relations Commission described as "incessant bullying" Dillon resigned. The Commission found that the bullying of a amounted to "constructive dismissal" (ie she had been treated in a way that forced her to resign rather than being directly fired).

Arnotts was ordered to reinstate Dillon, who recommenced work and was reimbursed for income lost through the constructive dismissal.

     Maddaford v Coleman

Inspector Maddaford v Coleman (NSW) Pty Ltd & Or [2004] NSWIRComm 317 - here

Maddaford illustrates that employers can be held liable where the risk of bullying is foreseeable. It is insufficient to react to bullying: employers need to be proactive in preventing bullying in order to ensure a safe and healthy working environment (and thus meet obligations under workplace OH&S legislation noted in the preceding page).

The case involved bullying of the 16 year old timber joinery worker Dwayne Doyle (referred to earlier in this note) whose co-workers had wrapped him in plastic, stuffed his mouth with sawdust and glue, and whirled him round on a trolley. He claimed that bullying exacerbated his existing health problems and, perhaps unsurprisingly, had not found it a pleasurable experience.

The full New South Wales Industrial Relations Commission confirmed an earlier decision by the NSW Chief Industrial Magistrate that the Coleman company had breached its duty under s 8 of the Occupational Health and Safety Act 2000 (NSW) in failing to ensure a healthy and safe workplace. Coleman's two directors and factory foreman were found to be personally liable under s 26 of that Act, even though not directly involved in the incident.

The Magistrate had found that Coleman had breached its s 8 duty when 16 year old Dwayne had been subjected to a 30-minute 'initiation' bullying by colleagues, including being wrapped in clingwrap from neck to toe, threatened with violence, spun on a trolley, covered in sawdust and glue, and repeatedly having sawdust forced into his mouth between bouts of having a fire hose squirted into his mouth. Doyle was an asthmatic. He claimed that the mistreatment left him with increased respiratory difficulties and damaged his mental health.

In deciding appeals by the Directors and by NSW Workcover the Commission's Full Bench indicated that substantial penalties are needed to force directors to give workplace bullying appropriate attention, commenting that an employer and its directors have a duty to prevent employees from "having fun at the expense of another person" and that courts are unsympathetic to claims that bullying involves "harmless pranks or workplace high-jinks".

WorkCover had earlier prosecuted all the employees involved in the initiation: all were convicted, with one being fined $500.

     Batton v NSW Police Service

Barry Michael Batton v NSW Police Service(1999) 46 AILR 5-229 NSWIRC (IRC 448 of 1997) here

Batton is another example of constructive dismissal, ie where there is no firing but the employee is forced out of the job because of bullying.

In this instance Batton, a detective within the NSW Police Service, was bullied for first refusing a bribe from a fellow detective and then reporting that offer to his superiors. If only all officers were that honest and met their obligations under the Police Act 1990 (NSW). The harassment was not addressed by his superiors. It resulted in the detective being incapacitated for work due to a psychiatric disorder, compelling him to seek retirement on medical grounds. He took action under the unfair dismissals provision of the Industrial Relations Act 1996 (NSW).

The NSW Industrial Relations Court held that the disorder was attributable to the bullying and to failure by the Police Service to deal with the bribe and subsequent bullying. The Service's inactivity as Batton's employer was held to have forced him to resign.

     WorkSafe Victoria v Ballarat Radio

WorkSafe Victoria v Ballarat Radio Pty Ltd - Ballarat Magistrate's Court (August 2004)

The Radio Ballarat case illustrates action by a state occupational health & safety agency (WorkSafe Victoria) in addressing bullying independent of litigation by a bully's target. That action is significant as a demonstration that government still has a role in the 'age of the internet (contrary to claims that it will inevitably and quickly "evaporate") and because many targets are reluctant to initiate litigation, given financial and emotional costs.

The target in Ballarat Radio had been verbally abused by Radio announcer Reginald Mowat had subjected fellow employees to verbal abuse and threats of violence while at work on over ten occasions in 2002 and 2003. He had also physically assaulted a colleague. Ballarat Magistrate James Mornane said the "explosive manner" of Mowat in dealing with other employees was "completely inappropriate".

Mornane commented that the incidents were serious, repetitive and extended over a period of time. They resulted in abused colleagues taking time off, being afraid and not wanting to come to work. In one instance a female employee a woman would not leave her office if Mowat was nearby.

Mowat was convicted and fined $10,000 in the Magistrates' Court on two counts relating to intimidating co-workers and for failing to take care for the health and safety of others in the workplace. He was ordered to pay $1,700 costs. The broadcasting company was subsequently fined $25,000 for failing to provide a safe workplace, and $25,000 for failing to provide instruction, training and supervision in relation to bullying. It was also ordered to pay costs of $5,000.

     McKenna v State of Victoria

McKenna v State of Victoria [1998] VADT 83 (1 June 1998) - here

McKenna involved a sexual harassment claim by Senior Constable Narelle McKenna under the Equal Opportunities Act (Vic), with the target of bullying being awarded $125,000 in general damages for distress, psychological injuryand hurt feelings.

The Victorian Anti Discrimination Tribunal found that McKenna's employer (the Victoria Police) and three of its employees had been responsible for recurrent discrimination and that she had been sexually harassed by a supervisor. The Tribunal considered that bullying was particularly egregious after she complained of harassment. Consistent with the catalogue of abuses highlighted earlier in this note, McKenna had been singled out by senior officers who placed memoranda with negative remarks about her honesty on her personnel file, upgraded a disciplinary sanction without notice and took extraordinary disciplinary action despite knowledge that she had complained about disciplinary abuses.

The unfortunate police officer suffered a breakdown but did not resign. The Tribunal's report was scathing, noting that the bullying was "initiated, supported or endorsed at high levels" and that the Victoria Police had clearly been reluctant over several years to meaningfully implement its own anti-bullying and equal opportunity policy.

The Tribunal's decision was upheld by the Victorian Supreme Court in State of Victoria v McKenna [1999] VSC 310.

    Blenner-Hassett v Murray Goulburn Co-operative

Blenner-Hassett v Murray Goulburn Co-operative Pty Limited & Ors - 1999 Victoria County Court (2651/96-Morwell) (PDF)

Blenner-Hassett illustrates both the nastiness of workplace initiation (aka hazing) and use of common law tort claims.

As discussed earlier in this note, teenager Kevin Blenner-Hassett, an apprentice fitter & turner in the Murray Goulburn Co-Op's workshops, underwent bullying himself and witnessed others being bullied. Gebhardt J commented that "In essence he maintains that his life has been inexorably skewed and damaged because of workplace bullying", which amounted to "unacceptable workplace intimidation and bastardization" over several years.

The target was stripped, painted, threatened with rape, recurrently taunted and had the dubious pleasure of seeing a work experience employee suspended over a fire. Almost a decade later he took court action.

An expert witness commented that

it's a shocking thing to do to a person, a human being, at any age, but being an adolescent is a very vulnerable time because that is the time when the sense of identity is being formed and so the sense of identity of who you are, getting back to your point before, about the sense of self, is being formed from a child, the child sense of identity which is different to the adult sense of identity, so it's a transition time and therefore a very vulnerable time in the sense of development of sense of self and sense of identity. So, to traumatise a person at that age, has devastating - potentially devastating consequences which it has done in this case, in my opinion.

The Court accepted arguments that the bullying had indeed traumatised the target and that his employer had been negligent in failing to prevent the torment. It was unimpressed by suggestions that the abuse was "training" or harmless "pranks". It awarded $350,000 damages, discussed in the following page.

Arnold v Midwest Radio

Arnold v Midwest Radio Pty Limited

Marilyn Arnold (no relation to this site's author) worked at the Townsville Independent News, a Queensland newspaper owned by regional broadcaster Midwest Radio. The Qld Equal Opportunity Commission found in 1999 that her manager had recurrently targeted her, although other staff were also bullied in a workplace that illustrated many of examples of what not to do to employees.

His language was "aggressive, bullying, abusive, belittling and sarcastic". He threatened staff with dismissal (including announcements that people were on a 'third & final warning' although no previous warning had been given), played people off against each other (eg falsely telling one of her colleagues that she had made a sexual harassment complaint), used homophobic language in publicly humiliating a gay employee by dumping his desk-top on the floor, and inviting staff into his office where they were given the opportunity of sacking each other. He refused Arnold compassionate leave to see a dying relative because it was "too close to Christmas".

She left her job and experienced health problems. She took action under theWorkplace Health & Safety Act (Qld), rather than the weaker discrimination legislation, arguing that the employer had failed to provide a safe system of work and thereby had breached of its statutory duty under that Act. Breach had resulted in her suffering serious psychological injury, with Midwest unreasonably exposing her to forseeable risk.

During initial litigation the Court was persuaded by that argument, finding that although the manager was entitled to use a "strong hand" in a competitive environment his practice was unacceptable and was causally related to her illness. She was awarded damages of $572,512, including general damages of $65,000, future economic loss of $160,000, $120,000 past carer costs in the past and future carer costs of $100,000.

In Midwest Radio Ltd v Arnold [1999] QCA 20 -here - the Queensland Court of Appeal agreed that she was unlikely to work again but overturned the decision on the basis that she had not satisfied the Court that there had been a breach of the duty of care to avoid psychological injury and that such injury was a reasonably foreseeable consequence of the employer's conduct.

It noted expert evidence that an "average person of normal fortitude" would have suffered anxiety disorder for up to a year because of the bullying, rather than her major depressive disorder. That difference was significant because liability for psychiatric illness was held to exist if it was reasonably foreseeable that a 'normal person' would be so affected.

Australian cases 2

This page illustrates the Australian bullying regime by highlighting some litigation.

It covers -

Emonson v Trustees of the Christian Brothers
Naidu v Group 4 Securitas
Webb v State of Queensland
Nikolich v Goldman Sachs JB Were
Hellsing v British Aerospace

Emonson v Trustees of the Christian Brothers

In 2001 18 year old Aaron Emonson was awarded $60,000 by a Victorian County Court after the jury heard that he had endured three years of bullying at his former school, St Patrick's College, Ballarat.

Emonson's solicitor noted that bullying was often a daily occurrence and violent. Emonson had

been belted on the arm with a piece of wood in a woodwork class; there'd been another occasion where he'd been hosed down with a water hose, and had been required to remain at school for the balance of that day in saturated clothing; there'd been another incident where he had been choked with a length of material from carpet cord and throughout that period the parents had made various requests of the school to deal with it and the response was far less than adequate. ...

He had not progressed well at school and as a result he ceased his schooling at the end of Year 10.

One of the alleged bullies is reported as stating that Emonson's treatment was no different to what most St Patrick's students experienced. "Everyone was doing it to everyone ... We weren't singling Aaron out."

The court found that the school had breached its duty of care, having been recurrently alerted by Emonson's parents. Emonson sued the school for physical and mental injuries caused by the bullying.

The hearing featured an email by a St Patrick's teacher in 1998 detailing problems with bullying in the school and complaining of difficulties in addressing that abuse.

     Naidu v Group 4 Securitas

Naidu v Group 4 Securitas Pty Ltd & Anor[2005] NSWSC 618 - here

Naidu is a leading case regarding the vicariousliability of employers regarding bullying, ie they have legal responsibility for the deeds and misdeeds of their employees (a matter illustrated through Inspector Maddaford v Coleman).

Naidu was a private security executive who sustained substantial psychiatric injuries from over five years of bullying while employed by Group 4 Securitas, which provided security services to News Ltd - particularly to its subsidiary Cumberland Newspapers. That bullying, by a News executive rather than by Group 4, included racist and sexist vilification. It occurred both inside and outside the work environment. The employer was found to be directly and vicariously liable for psychiatric injuries that the Court was told prevent Naidu from working for the rest of his life and will require future hospitalisation.

He was awarded $2 million damages, including lost salary of $70,000 a year until the age of 65, general damages of $200,000 and exemplary damages against News Ltd of $150,000.

     Webb v State of Queensland

Webb v State of Queensland [2006] QADT 8 (23 March 2006) (txt)

Webb illustrates questions about corporate liability, suggesting that it is insufficient for an employer to rely on promulgation of policies and provision of formal complaint mechanisms in a world where some people may be too embarrassed or intimidated to make a formal complaint and where policies are seen to be disregarded.

Rosalie Webb initiated action under the Anti-Discrimination Act 1991 (Qld), alleging that she was sexually harassed by a male co-worker during her employment with Queensland Health, a government entity with a sexual harassment policy and a complaints procedure. Her colleague allegedly engaged in unwanted (and unauthorised) touching, referred to her using sexual epithets, sent her unwanted pornographic email, and made comments about his sex life and her sex life.

Ms Webb notified her employer of her concerns in 2001 and 2002 through informal comments to her supervisor and manager, being told that she should speak to her colleague directly. Nothing could be done unless she lodged a formal complaint.

Qld Health defended its inactivity by claiming there was no vicarious liability for the bullying because it had taken "all reasonable steps" to prevent harassment from occurring in the workplace. The Tribunal disagreed, noting that employers must be proactive, with action taken prior to the making of a formal complaint (ie to prevent bullying) rather than merely in response to a specific complaint. Qld Health had failed to take appropriate action when it became informally aware of the harassment in 2001.

The Tribunal noted questions about fairness in the handling of complaints but concluded that under the legislation a formal complaint was not a precondition for preventing bullying. It was insufficient for the employer to tell Ms Webb to ask another employee to stop bullying.

Qld Health was ordered to pay damages of $14,665 to Ms Webb.

    Nikolich v Goldman Sachs JBWere

Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784 - here

Peter Nikolich, a private investment adviser, complained to his employer, Goldman Sachs J B Were, about the behaviour of his immediate boss. He said that he was subjected to a series of malicious personal attacks, verbal abuse and insults, and his clients had been reallocated to other colleagues. He went on sick leave and was then told that Goldman considered that his employment was over.

In subsequent litigation court he successfully argued that his employer's failure to deal with the complaint quickly and effectively breached Goldman's own policies and procedures, constituting a breach of his employment contract. He sought substantial damages for psychological illness caused by bullying.

The Court agreed that there had been bullying and a breach of contract. It noted that when becoming a Goldman employee he had been required to sight and formally acknowledge theWorking with Us policy document that featured provisions regarding harassment, integrity, safety and grievance procedures.

Wilcox J held that the employer's policy manual (including Working With Us) formed part of the contract and that Goldman had failed to comply with the provision promising to "take every practicable step" to protect his "health and safety". Although damages are ordinarily not recoverable for disappointment and distress, there is an exception for psychiatric illness as personal injury. In this instances such damages were not too remote (ie the illness was attributable to the bullying and its mishandling in breach of Goldman's policy manual). Nikolich was accordingly awarded some $500,000 in damages.

In 2007 the Full Court of the Federal Court inGoldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120 upheld that decision, including the award plus interest. It awarded Nikolich 90% of his costs regarding the appeal but overturned the original costs order on the basis of restrictions in the Workplace Relations Act 1996 (Cth).

Hellsing v British Aerospace

Stig Hakan Hellsing v British Aerospace Australia Ltd [2001] ACTSC 98 (17 October 2001) - here

Hellsing involved bullying that resulted in another target suffering from a major depressive illness.

Technician Stig Hellsing, employed by British Aerospace at the Tidbinbilla deep space tracking station in the ACT, had been bullied by a drunken night-shift supervisor for several years during the early 1990s. The station's management were aware of the environment but failed to take action. He gave up work in 1995, suffering the effects of stress, after he had been forced to move to a day shift (at a much lower salary) following difficulties with a redundancy requested as a way of dealing with the bullying.

British Aerospace as employer admitted liability for Hellsing's condition and did not contest his evidence. He was awarded $342,989, with suggestions that the amount might have been much higher if the Court had accepted particular claims about future earnings.

Australian cases 3

Bailey

Bailey v Peakhurst Bowling & Recreation Club Ltd [2009] NSWDC 284 | here

Carol Anne Bailey was employed as a casual bar steward by the Peakhurst Bowling & Recreation Club Ltd from 1998 until 2006, when at the age of 52 years old she had to cease work due to ill-health. The Club conceded that supervisor Tony Riley had subjected her to concerted workplace bullying over two years. That bullying included constant threats that she would lose her job, changing her work classification so that she lost pay and seniority, pressure to bend or break licensing rules, use of extremely vulgar language, pressure to resign her union membership, and falsely alleging a shortfall in the bar finances.

Unsurprisingly her health suffered. She took action against the Club, rather than her tormentor. The NSW District Court accepted that she had a serious chronic generalised anxiety disorder and post-traumatic stress disorder and depression. She was unlikely to fully recover and, given her age, was unlikely to return to paid employment.

She was sufficiently astute to maintain a diary over the period during which she was bullied, corroborating her other evidence. The Club admitted liability, conceding that it owed a duty of care regarding provision of a safe workplace. It also conceded that its breach was attributable to Bailey suffering an injury that resulted in a psychiatric disorder. The Court awarded $507,550 in damages, including $334,305 for future loss of earning capacity and $36,773 for future loss of superannuation.

2012-11-27T21:31:00.001+11:00

Australian bullying law

This page outlines the shape of Australian law about bullying.

It covers -

Anti-Discrimination Legislation
Common Law (eg for physical and/or psychological injury)
Constructive Dismissal aspect of Industrial Relations Law
Occupational Health & Safety Law
Workers Compensation schemes
Criminal Law

Occupational Health & Safety (Commonwealth Employees) Act 1991(Cth)
Occupational Health & Safety Act 1989(ACT) - here
Occupational Health & Safety Act 2000(NSW) - here
Workplace Health & Safety Act 2007 (NT) -here
Workplace Health & Safety Act 1995 (Qld) - here
Occupational Health, Safety & Welfare Act 1986 (SA) - here
Workplace Health & Safety Act 1995 (Tas) - here
Occupational Health & Safety Act 2004(Vic) - here
Occupational Safety & Health Act 1984(WA) - here

behaviour that intimidates, offends, degrades, insults or humiliates a worker, possibly in front of co-workers, clients or customers and which includes physical or psychological behaviour.

Workers Compensation Act 1951 (ACT) -here
Workplace Injury Management & Workers Compensation Act 1998 (NSW) - here
Workers' Rehabilitation & Compensation Act (NT) - here
Workers' Rehabilitation & Compensation Act 2003 (Qld) - here
WorkCover Corporation Act 1994 (SA) -here
Workers Rehabilitation & Compensation Act 1988 (Tas) - here
Workers Compensation Act 1958 (Vic) -here
Workers' Compensation & Injury Management Act 1981 (WA) - here

theft
assault (including threats and physical contact)
unauthorised confinement
destruction of property

Australian cases 1

This page illustrates the Australian bullying regime by highlighting some litigation.

It covers -

Cox v NSW
Maddaford v Coleman
Dillon v Arnotts Biscuits
Batton v NSW Police Service
Worksafe Victoria v Ballarat Radio
McKenna v Victoria Police
Blenner-Hassett v Murray Goulburn Co-operative
Arnold v Midwest Radio

This was not a case of attempting to prevent something which may or may not have occurred; what was called for were steps that would eradicate a known course of conduct.

She concluded that Cox's

Australian cases 2

This page illustrates the Australian bullying regime by highlighting some litigation.

It covers -

Emonson v Trustees of the Christian Brothers
Naidu v Group 4 Securitas
Webb v State of Queensland
Nikolich v Goldman Sachs JB Were
Hellsing v British Aerospace

2012-11-27T21:30:00.013+11:00

Australian bullying law

This page outlines the shape of Australian law about bullying.

It covers -

Anti-Discrimination Legislation
Common Law (eg for physical and/or psychological injury)
Constructive Dismissal aspect of Industrial Relations Law
Occupational Health & Safety Law
Workers Compensation schemes
Criminal Law

Occupational Health & Safety (Commonwealth Employees) Act 1991(Cth)
Occupational Health & Safety Act 1989(ACT) - here
Occupational Health & Safety Act 2000(NSW) - here
Workplace Health & Safety Act 2007 (NT) -here
Workplace Health & Safety Act 1995 (Qld) - here
Occupational Health, Safety & Welfare Act 1986 (SA) - here
Workplace Health & Safety Act 1995 (Tas) - here
Occupational Health & Safety Act 2004(Vic) - here
Occupational Safety & Health Act 1984(WA) - here

behaviour that intimidates, offends, degrades, insults or humiliates a worker, possibly in front of co-workers, clients or customers and which includes physical or psychological behaviour.

Workers Compensation Act 1951 (ACT) -here
Workplace Injury Management & Workers Compensation Act 1998 (NSW) - here
Workers' Rehabilitation & Compensation Act (NT) - here
Workers' Rehabilitation & Compensation Act 2003 (Qld) - here
WorkCover Corporation Act 1994 (SA) -here
Workers Rehabilitation & Compensation Act 1988 (Tas) - here
Workers Compensation Act 1958 (Vic) -here
Workers' Compensation & Injury Management Act 1981 (WA) - here

theft
assault (including threats and physical contact)
unauthorised confinement
destruction of property

Australian cases 1

This page illustrates the Australian bullying regime by highlighting some litigation.

It covers -

Cox v NSW
Maddaford v Coleman
Dillon v Arnotts Biscuits
Batton v NSW Police Service
Worksafe Victoria v Ballarat Radio
McKenna v Victoria Police
Blenner-Hassett v Murray Goulburn Co-operative
Arnold v Midwest Radio

This was not a case of attempting to prevent something which may or may not have occurred; what was called for were steps that would eradicate a known course of conduct.

She concluded that Cox's

Australian cases 2

This page illustrates the Australian bullying regime by highlighting some litigation.

It covers -

Emonson v Trustees of the Christian Brothers
Naidu v Group 4 Securitas
Webb v State of Queensland
Nikolich v Goldman Sachs JB Were
Hellsing v British Aerospace

2012-11-27T21:30:00.011+11:00

Australian bullying law

This page outlines the shape of Australian law about bullying.

It covers -

Anti-Discrimination Legislation
Common Law (eg for physical and/or psychological injury)
Constructive Dismissal aspect of Industrial Relations Law
Occupational Health & Safety Law
Workers Compensation schemes
Criminal Law

Occupational Health & Safety (Commonwealth Employees) Act 1991(Cth)
Occupational Health & Safety Act 1989(ACT) - here
Occupational Health & Safety Act 2000(NSW) - here
Workplace Health & Safety Act 2007 (NT) -here
Workplace Health & Safety Act 1995 (Qld) - here
Occupational Health, Safety & Welfare Act 1986 (SA) - here
Workplace Health & Safety Act 1995 (Tas) - here
Occupational Health & Safety Act 2004(Vic) - here
Occupational Safety & Health Act 1984(WA) - here

behaviour that intimidates, offends, degrades, insults or humiliates a worker, possibly in front of co-workers, clients or customers and which includes physical or psychological behaviour.

Workers Compensation Act 1951 (ACT) -here
Workplace Injury Management & Workers Compensation Act 1998 (NSW) - here
Workers' Rehabilitation & Compensation Act (NT) - here
Workers' Rehabilitation & Compensation Act 2003 (Qld) - here
WorkCover Corporation Act 1994 (SA) -here
Workers Rehabilitation & Compensation Act 1988 (Tas) - here
Workers Compensation Act 1958 (Vic) -here
Workers' Compensation & Injury Management Act 1981 (WA) - here

theft
assault (including threats and physical contact)
unauthorised confinement
destruction of property

Australian cases 1

This page illustrates the Australian bullying regime by highlighting some litigation.

It covers -

Cox v NSW
Maddaford v Coleman
Dillon v Arnotts Biscuits
Batton v NSW Police Service
Worksafe Victoria v Ballarat Radio
McKenna v Victoria Police
Blenner-Hassett v Murray Goulburn Co-operative
Arnold v Midwest Radio

This was not a case of attempting to prevent something which may or may not have occurred; what was called for were steps that would eradicate a known course of conduct.

She concluded that Cox's

Australian cases 2

This page illustrates the Australian bullying regime by highlighting some litigation.

It covers -

Emonson v Trustees of the Christian Brothers
Naidu v Group 4 Securitas
Webb v State of Queensland
Nikolich v Goldman Sachs JB Were
Hellsing v British Aerospace

2012-11-27T21:30:00.009+11:00

Australian bullying law

This page outlines the shape of Australian law about bullying.

It covers -

Anti-Discrimination Legislation
Common Law (eg for physical and/or psychological injury)
Constructive Dismissal aspect of Industrial Relations Law
Occupational Health & Safety Law
Workers Compensation schemes
Criminal Law

Occupational Health & Safety (Commonwealth Employees) Act 1991(Cth)
Occupational Health & Safety Act 1989(ACT) - here
Occupational Health & Safety Act 2000(NSW) - here
Workplace Health & Safety Act 2007 (NT) -here
Workplace Health & Safety Act 1995 (Qld) - here
Occupational Health, Safety & Welfare Act 1986 (SA) - here
Workplace Health & Safety Act 1995 (Tas) - here
Occupational Health & Safety Act 2004(Vic) - here
Occupational Safety & Health Act 1984(WA) - here

behaviour that intimidates, offends, degrades, insults or humiliates a worker, possibly in front of co-workers, clients or customers and which includes physical or psychological behaviour.

Workers Compensation Act 1951 (ACT) -here
Workplace Injury Management & Workers Compensation Act 1998 (NSW) - here
Workers' Rehabilitation & Compensation Act (NT) - here
Workers' Rehabilitation & Compensation Act 2003 (Qld) - here
WorkCover Corporation Act 1994 (SA) -here
Workers Rehabilitation & Compensation Act 1988 (Tas) - here
Workers Compensation Act 1958 (Vic) -here
Workers' Compensation & Injury Management Act 1981 (WA) - here

theft
assault (including threats and physical contact)
unauthorised confinement
destruction of property

Australian cases 1

This page illustrates the Australian bullying regime by highlighting some litigation.

It covers -

Cox v NSW
Maddaford v Coleman
Dillon v Arnotts Biscuits
Batton v NSW Police Service
Worksafe Victoria v Ballarat Radio
McKenna v Victoria Police
Blenner-Hassett v Murray Goulburn Co-operative
Arnold v Midwest Radio

This was not a case of attempting to prevent something which may or may not have occurred; what was called for were steps that would eradicate a known course of conduct.

She concluded that Cox's

Australian cases 2

This page illustrates the Australian bullying regime by highlighting some litigation.

It covers -

Emonson v Trustees of the Christian Brothers
Naidu v Group 4 Securitas
Webb v State of Queensland
Nikolich v Goldman Sachs JB Were
Hellsing v British Aerospace