The challenges of maturity

When a worker is of mature years, a damages claim for work injuries can present particular challenges

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Ms Schofield was aged in her mid-fifties.  She suffered a right knee injury while employed by a butcher.  At the time of her accident she was receiving average weekly earnings of around $375.00.

She sought leave in the Melbourne County Court to sue for common law damages for economic loss and pain and suffering on the basis that she had suffered a serious injury.  The Workplace Injury Rehabilitation and Compensation Act 2013 (Vic.) provides at §335(2)(d) that –

If—
(a) the assessment under Division 4 of Part 5 or under section 104B of the Accident Compensation Act 1985 of the degree of impairment of the worker as a result of the injury is less than 30 per cent; or
(b) the worker makes an application under section 328(2)(b) —
the worker may not bring proceedings for the recovery of damages in respect of the injury unless— …
(d) a court, other than the Magistrates’ Court, gives leave to bring the proceedings …

It was common ground that if the plaintiff retained any work capacity she would not meet the definition of “serious injury”, at least in respect of economic loss.  The medical evidence broadly showed that if she retained any work capacity it was for sedentary or clerical duties.

Judge Dyer noted that

Ms Schofield is relatively advanced in age and has not worked since sustaining her injury in 2014. She has very limited education and my own assessment of her, particularly during cross-examination before me, was that she would have very limited skills to offer other than in a very simple customer service role. Plainly her knee injury renders her unsuitable for that type of employment.

She has effectively no experience in office work, and I accept her evidence, supplemented to some extent by the report of Mr McGuire from Converge International, that she did require further computer skills in order to have any real prospect of employability in an office environment. Indeed, the plaintiff’s own evidence of effectively repeating [a] short computer course without any real benefit confirms my view that she is a woman who would have no real aptitude for any office work position in the open labour market.

His Honour concluded that the plaintiff had no current work capacity for suitable employment and that this was likely to continue indefinitely.  She was granted leave to sue for damages.

Schofield v Country West Gourmet Meat & Chicken Pty Ltd [2018] VCC 614

Failure to predict.

It’s hard to imagine that a police sergeant or bail justice could have predicted what would happen later.

It’s not clear how he was released.  In the afternoon or evening of 15 March 2017 one Macarthur was drunk and randomly punching at passengers at a Melbourne railway station.  He was arrested.  At about 10:00pm on 15 March 2017 he was released from police custody.  Seven hours later – at about 5am – he met a young woman at a tram stop.  He followed her onto – and off – the tram.  He accosted and raped her near a hospital.

The Crimes Act 1958 (Vic) §38 relevantly provides that –

(1) A person (A) commits an offence if—

(a) A intentionally sexually penetrates another person (B); and

(b) B does not consent to the penetration; and

(c) A does not reasonably believe that B consents to the penetration.

(2) A person who commits an offence against subsection (1) is liable to level 2 imprisonment (25 years maximum).

(3) The standard sentence for an offence against subsection (1) is 10 years.

The offender pleaded guilty before Judge Lawson in the Melbourne County Court.  Her Honour considered the crime to have been brazen and predatory.  She imposed a sentence of seven years and nine months, to serve a minimum of five years.  He had already served 15 months on remand.

Director of Public Prosecutions v Macarthur (2018) Herald Sun, 2 June 2018, p.21

Eight years. One second.

It’s impressive he was even functioning.

In March 2017 a Melbourne truck driver was about to end an eight year ice binge.  He didn’t mean to.  He had been swerving erratically on the Calder Freeway.  The cars ahead were slowing for roadworks that morning.  He reacted, at most, a second before he crashed into the back of boilermaker Kari-Pekka Maunus’ utility, killing the 49-year old boilermaker.  He was charged with causing death by culpable driving.

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The Crimes Act 1958 (Vic.) §318 relevantly provides that

(1) Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence and shall be liable to level 3 imprisonment (20 years maximum) or a level 3 fine or both.

(1A) The standard sentence for an offence under subsection (1) is 8 years.

(2) For the purposes of subsection (1) a person drives a motor vehicle culpably if he drives the motor vehicle … whilst under the influence of a drug to such an extent as to be incapable of having proper control of the motor vehicle.

The charge was dealt with in the Melbourne County Court. Judge Wraight imposed a sentence of six years imprisonment with a minimum term of four years

Director of Public Prosecutions v Templeton (2018) Herald Sun, 2 June 2018, p.31.

Sick. Sicker.

Illness leading to injury.  No winners here.

Between September 2016 and March 2017 a disabled 37 year old man in Melbourne, Australia, made a number of phone calls to mothers.  He posed as an emergency responder.  He told each one that her daughter had been killed in a road accident.  Each one was deeply shocked by the phone call.  One was later diagnosed with depression and Post-Traumatic Stress Disorder.  Another was left with sleep problems.  The offender was charged with three instances of stalking and of recklessly causing injury, and also two instances of using a carriage service to menace, harass or cause offence.

 

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The Crimes Act 1958 (Vic) §21A relevantly provides that –

(1) A person must not stalk another person. Penalty: Level 5 imprisonment (10 years maximum).

(2) A person (the offender) stalks another person (the victim) if the offender engages in a course of conduct which includes … contacting the victim or any other person by post, telephone, fax, text message, e-mail or other electronic communication or by any other means whatsoever; … with the intention of … arousing apprehension or fear in the victim for his or her own safety or that of any other person.

(3) For the purposes of this section an offender also has the intention to … arouse apprehension or fear in the victim for his or her own safety or that of any other person if … the offender knows that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear …

The matter was dealt with before Judge McInerney in the Melbourne County Court.  It was put on his behalf that he had significant mental problems including autism, a socialization disorder and Tourette’s syndrome.  The Court said that the offences were bizarre, heinous and grievous, but that the offender’s illness required his punishment to be moderated.

The offender was sentenced to serve three months imprisonment in addition to the roughly 15 months he had spent on remand.  He was ordered to complete a community corrections order including mental treatment on release.

Director of Public Prosecutions v Zillner (2018) The Age, 7 June 2018, p.11

Good news for a change

A recent amendment to the Transport Accident Act 1986 (Vic.) has made access to medical expense benefits easier for road accident victims.

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On 13 February 2018 the Compensation Legislation Amendment Act 2018 (Vic.) received royal assent. Section 4 of the Act repealed s.43(1)(b) of the Transport Accident Act 1986. This disposed of the medical expense excess (currently $651.00) which previously had to be paid before the Transport Accident Commission would take on medical expenses when a person was not made a hospital in-patient.

As a result of this amendment, sub-ss. 43(1A), (1B) and (1C) of the Transport Accident Act 1986 became redundant and were also repealed.

This change applies to people injured in accidents occurring on or after 14 February 2018.

In visual form the amendments were as follows –

43 Liability for losses in first five days etc.

(1) The Commission

(a) is not liable to pay compensation under this Part to an earner injured as a result of a transport accident in respect of loss of earnings during the first five days after the accident or after the injury first manifests itself, whichever last occurs, in respect of which, or any part of which, the earner suffers any loss of earnings as a result of, or materially contributed to by, the injury. ; and

(b) subject to subsections (1A), (1B) and (1C), is not liable to pay the first $389 (as varied from time to time in accordance with section 61) of the reasonable costs of medical services received because of an injury as a result of a transport accident.

(1A) The Commission is liable to pay the whole of the reasonable costs of medical services received by a person because of an injury as a result of a transport accident if the person dies as a result of that injury .

(1B) The Commission is liable to pay the whole of the reasonable costs of medical services received by a person after that person has been an in-patient for 1 day because of an injury as a result of a transport accident .

(1C) For the purposes of subsection (1), a claim by a person injured as a result of a transport accident and a claim by any member of the immediate family of that person who is also injured as a result of the same transport accident is to be treated as if it were one claim .

(2) If, by reason of subsection (1)(a), the Commission is not liable to make a payment to an earner in respect of loss of earnings, the Commission may make such a payment if it is satisfied that the earner would suffer acute financial hardship if a payment were not made.

This is a significant improvement to a long standing issue with the Transport Accident Act which from time to time delayed claimants receiving necessary assistance.

What part of “shall not” don’t you understand?

It shouldn’t be difficult should it?  You just have to avoid acting like a tool.

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Image credit: Ondrick Larsen Lawyers

In 2017 an intervention order was served on a man in Portland, Australia.  He was forbidden from physically or verbally intimidating a particular other person.  On 13 April 2018 he was at that person’s home when an argument saw him grab their chair and then verbally abuse them.  The offender was charged with breaching an intervention order.  The report leaves unclear what sort of intervention order was imposed.  However, the Family Violence Protection Act 2008 (Vic.), §123(2) provides that breaching a family violence intervention order is punishable by up to two years imprisonment.

The defendant was presented for trial in Portland Magistrates Court where he pleaded guilty.  He submitted that a series of quarrels combined with a failure to take medication had lead to the actions breaching the order.  Toose M imposed a fine of $1,200.00.

Police v Kennett (2018) Portland Observer & Guardian, 2 May 2018, p.5

Doing a line of … baby formula?

I don’t know how much heroin costs per ounce. I hope it’s more than baby formula. If it’s less, it’ll completely eff my sense of reality.

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In December 2017 and April 2018 a man from Corio, Australia, stole 67 tins of baby formula from supermarkets in Portarlington, Drysdale and Eltham. The retail value of this much formula was A$2,345.00 (the value on the China-driven black market may be as much as A$13,500!)

The offender was charged with four counts of theft and one of obtaining property by deception, as well as certain bail offences. The Crimes Act 1958 (Vic.), §81(1) provides that –

A person who by any deception dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).

 

The offender was dealt with in the Geelong Magistrates’ Court. His lawyer submitted that he had committed the thefts to fund a heroin addiction. He had been gainfully employed from his release from prison for another offence in 2012 until he suffered a back injury in 2016.

Mellas M sentenced the offender to two months imprisonment.

Police v Wright (2018) Geelong Advertiser, 25 May 2018, p.7

The flames of revenge

The Black Saturday bushfires of 2009 have left a long shadow across Victoria, Australia.

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A 53 year old woman lit 14 fires around the Tatura and Mooroopna areas between February 2014 and January 2015.  Mercifully each was reasonably small but required attendances from the all-volunteer Tatura and Mooroopna fire brigades.  The defendant was charged with intentionally or recklessly causing a bushfire.  The Crimes Act 1958 (Vic.) §201A(1)  provides that

A person who—
(a) intentionally or recklessly causes a fire; and
(b) is reckless as to the spread of the fire to vegetation on property belonging to another—
is guilty of an offence and liable to level 4 imprisonment (15 years maximum).

The defendant was dealt with in the County Court of Victoria.  Judge Carmody noted that some of the offences were promoted by a quarrel with a farm managers son.  His Honour considered that her mental impairment (mild intellectual disability and an IQ of 67) reduced her moral culpability.  However, he alos noted that dealing with the fires had placed additional pressures on volunteer emergency responders.  He sentenced the defendant to 88 days imprisonment, a four year community corrections order and 300 hours of volunteer work.

Director of Public Prosecutions v Thumpston (2018), Tatura Guardian, 17 April 2018, p.7

Oh Deer…

In August 2017 the Game Management Authority and Victoria Police conducted a crackdown on illegal hunting in northeast Victoria, Australia. One group of men was found to be in possession of two firearms and two high-powered torches. The second group was found to be in possession of a single firearm and four high-powered torches.

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The Wildlife (Game) Regulations 2012 (Vic.) r.12 provide that –

(1) A person must not be in possession of a spotlight and a firearm in recognised deer habitat from 30 minutes after sunset until 30 minutes before sunrise. Penalty: 20 penalty units.
(2) A person must not be in possession of a spotlight and be in company with a person in possession of a firearm in recognised deer habitat from 30 minutes after sunset until 30 minutes before sunrise. Penalty: 20 penalty units.
(3) A person must not be in possession of a firearm and be in company with a person in possession of a spotlight in recognised deer habitat from 30 minutes after sunset until 30 minutes before sunrise. Penalty: 20 penalty units.

Both groups were presented for trial in Myrtleford Magistrates Court. The court fined two men $1,000.00 without recording a conviction (both of these mens’ hunting equipment had been seized). The third man was placed on a diversion and ordered to pay $250.00 to charity and write a letter of apology (the matter will be struck out if he is of good behaviour for 12 months). The fourth man pleaded guilty and was fined $750.00. The fifth was placed ona good behaviour bond without conviction and ordered to donate $750.00 to charity

Game Management Authority v Flanders* (2018) Country News, 15 May 2018, p.8.

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* No name is given in the report and I have arbitrarily assigned a name drawn from television.

How not to solve housemate issues

We’ve all had that housemate: the one who’s never adjusted to the fact that their mother isn’t there to clean up after them. It’s still not a good idea to go Jackie Chan on them.

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On 2 August 2017 a 32 year old man from Portland, Australia, locked a housemate out of their dwelling.  When the housemate arrived home at 3:30am, the offender began to berate them over uncompleted chores, finally pushing them onto a bed and slapping them.  He was charged with recklessly causing injury (Crimes Act 1958 (Vic.), §18):

A person who, without lawful excuse, … recklessly causes injury to another person is guilty of an indictable offence. Penalty: … If the injury was caused recklessly—level 6 imprisonment (5 years maximum).

The offender pleaded guilty in Portland Magistrates Court.  Toose M fined him $1,000.00.

Police v King (2018) Portland Observer & Guardian, 2 May 2018, p.5.