There are a number of factors that will  be considered in determining whether or not spousal maintenance will be  paid and how much will be paid. The person asking for spousal maintenance will be required to demonstrate  the need for financial assistance. For example, he or she may have young children to care for or be unable to work due to an illness.

The financial circumstances of the person requested to pay spousal maintenance will also be taken into consideration as that person must have the financial capacity to pay it.

The level of spousal support paid will depend on the needs of the person to whom it is paid as well as on the financial capability of the other partner to pay it.

Depending on the circumstances, an urgent application may be able to be made to the court.

We are able to advise you in detail on these matters as our team members are most experienced in these kinds of issues.

However, in a world where banking and finance is conducted electronically this can be easier to trace than in the olden days. The wealthy try hiding it offshore into untraceable bank accounts, owned through a maze of trusts and companies. The less fortunate do it by depositing funds in the bank accounts of relatives.

We were involved in a case where the husband syphoned off a few million dollars from the sale of his business offshore so his wife couldn’t access it. He needed the funds to live and set up a new business so he then brought some back into the country. It was hardly a smart move. The wife subsequently got a court order that allowed for the freezing of the funds to provide security for her settlement. Needless to say he had left a financial trail that was fairly easy to follow. That doesn’t always happen.

Our Family Law team has had extensive experience in dealing with relationship breakdowns and can help you by providing you with expert legal advice to ensure your entitlements are protected.

Not all “head injuries” result in injury to the brain.  Importantly also, the terms “acquired brain injury” and “traumatic brain injury” are not interchangeable.  One, (traumatic brain injury), is a subset of the other (acquired brain injury).  A traumatic brain injury is an insult to the brain, caused by an external physical force.  An acquired brain injury may result from, and therefore includes, traumatic brain injuries, but an aquired brain injury may equally result from, and therefore includes, injury to the brain as a result of aneurisms, infections of the brain or stroke.  Degenerative or congenital defects of the brain are not usually considered to be “acquired brain injuries”.  Of course, sufferers of degenerative/congenital brain defects demonstrate the same or similar symptoms as individuals who have suffered an aquired brain injury (ABI).

Most brain injuries are the result of bruising, bleeding, twisting or tearing of brain tissue.  Damage may occur at the time of injury, or develop later as a result of swelling or bleeding within the head or other medical complications of the injury.  Indeed, survivors of an ABI may have more than one type of injury.

The brain consists of a jelly like mass made up of millions of microscopic cells that are suspended in cerebrospinal fluid.  The brain is composed of individual cells called neurons.  An ABI can cause these cells to malfunction or even die.

There are three main areas of the brain:-

• Cortex (cerebrum);
• Cerebellum; and
• Brain Stem (diancephalon).

The cortex is the largest area of the brain and is the centre where most thinking functions process.  The cortex itself has four “lobes” that control specific functions and skills.   The cortex call also be divided into two hemispheres, the right and the left.  The left hemisphere is usually the dominant one and controls functions such as speaking, reading and writing and calculating.

The right hemisphere controls visual-spacial functions such as visual memory, drawing and music/rhythm.

The four lobes of the brain include:-

• Frontal Lobe.  This is often damaged because of its size and location near the front of the cranium.  The frontal lobe is involved in many cognitive functions including processing of emotions and development of personality.
• Temporal Lobe.  Damage to the temporal Lobe has been associated with behavioral disorders.

• Occipital Lobe.  This is located at the back portion of the brain and is associated with interpreting visual stimuli and information.

• Parietal Lobe.  Injury to parietal lobe will effect processing of tactile sensory information such as pressure, touch and pain.  The parietal lobe is essential to the processing of the bodies senses.

The cerebellum is responsible for coordination, balance and posture.

However, perhaps the most critical part of the brain is the brain stem.  It connects the brain to the spinal cord and controls survival functions such as breathing, beating of the heart, consciousness and alertness.

The brain is protected by the cranium (skull).  When the brain moves inside the skull (which can occur as a result of external force eg – car accident) it can be torn and bruised by being thrust against the inside of the cranium, causing injury.  The swelling and compression that follow such injury can cause long term effects.

Neurological imaging (CT scan, CAT scans or MRI imaging) can take pictures of the inside of the brain and are able to image blood in the brain, cell death (atrophy), swelling (edema) and other damage to brain tissue.

Types of Brain Injury

1. Skull Fracture – A skull fracture is a break in the bone that surrounds the brain.  The fracture may heal on its own or, if there is tissue damage below the fracture, require remedial surgery.  A skull fracture can be depressed (meaning part of the skull is pushed into the brain) or non-depressed (which can still be very serious).
2. Anoxic Brain Injury – An anoxic brain injury is caused by a lack of oxygen to the brain.  It usual results from lack of blood flow due to injury or bleeding and will cause the swelling of brain tissue.
3. Contusion/Concussion – Such injury is often misdiagnosed as a “mild” injury to the brain.  While there usually is little or no loss of consciousness, the long terms results/effects certainly may not be “mild”.
4. Defuse Axonal Injury (DAI) – A DAI results when a rotational or shearing force is exerted on the nerve fibers.  DAI may cause a loss of consciousness or indeed a coma may result, for a short time or may extend indefinitely.  The rotational force of this injury causes a shearing of the nerve connections and pathways.  These pathways may tear and be lost permanently.  If this occurs, the brain must then try to find alternative pathways to resume the functions of the severed paths.  DAI can be especially devastating and indeed frustrating in that some DAI injuries are microscopic and usually cannot be detected in radiological imaging.  Nonetheless, other diagnostic techniques (eg – PET scan) can sometimes detect them.
5. Hematoma– A “epidural hematoma” is an accumulation of blood between the skull and the top lining of the brain (dura).  This clotting may cause pressure changes in the brain, which require emergency surgical procedure in most cases. The size of the clot will determine whether surgery is necessary.  Such bleeding may increase pressure on the brain, causing it to be forced down the spinal column, compressing the brain stem, which usually results in death.An “intra cerebral hemorrhage” is a blood clot deep in the middle in the brain which is hard to remove.  Pressure from this clot may cause tissue damage and may require surgical intervention to relive the pressure.A “subdural hematoma” refers to the formation of a blood clot between the brain tissue and the dura.  The clot may cause pressure and require surgical intervention.
6. Coup – Contra Coup – A “Coup” injury is caused when the brain is propelled against one side of the skull.  Because brain tissue is suspended in fluid, it often rebounds and collides with the opposite side of the skull.  When it strikes both sides of the skull, the injury is sometimes called a contra coup injury.
7. Spinal Cord Injuries – Unfortunately, a brain injury is often associated with a spinal cord injury.  It is important that an expert in TBI also be involved in management of these complex injury situations.

Claims involving head injury, in particular significant TBI are complicated and involve complex medical and legal concepts.

The substantive and procedural laws which govern the conduct of personal injuries claims in Queensland are complex and, in most cases, involve short time frames in which to provide appropriate notification to those responsible for the injury.  However, it is usually the case that individuals who suffer brain injury (or other serious injury) will require significant care and support, including medical, rehabilitation and indeed accommodation requirements.

It is important to seek specialist legal advice as soon as practical following sustained serious traumatic brain injury.  Mr Cameron Hall, Accredited Personal Injuries Specialist and Principal in charge of the Accident Compensation of Hall Payne Lawyers, personally conducts all claims involving TBI or, other serious injury, given the complexities and quite often urgent medical and rehabilitation needs attaching to claims of this nature.  Cameron can be contacted on 1800 659 114.

A ‘prenup’ is the colloquial word used for a legally binding financial agreement between couples who want certainty regarding how any of the property, financial resources or maintenance, of either or both of them, is to be dealt with in the event of a separation.

It can be put in place either before or during a marriage, or before or during a de facto relationship. Sometimes the agreements are also referred to as cohabitation agreements.

What does it do?

In simple terms, a ‘prenup’ agreement provides the basis on which property divisions will take place in the event of future separation or divorce rather than leaving it up to a Judge to decide. It negates the need for parties to go through significant negotiations to settle/divide the assets at the time of separation or divorce.

Who does it help?

People who have significant assets or those in a relationship where there is an imbalance in the assets held by each of them.

People wishing to protect things such as a farming enterprise or who wish to ensure that certain family property such as inheritances, heirlooms or property passed down through the generations ends up in the hands of the person for whom it was intended.

People with children from a previous marriage who want to ensure those children retain all or part of the wealth they would have received had the relationship not occurred.

Those who wish to promote discussion at commencement of the relationship, in an attempt to reduce arguments about finances. “Prenups” ensure that parties talk about financial goals and expected outcomes in the event that the relationship does not succeed.

What doesn’t it do?

It doesn’t regulate what happens on the death of a party and accordingly parties to a relationship still need a Will.

The agreement doesn’t enable lifestyle clauses to be enforced about things like who does the domestic chores or sexual matters such as fidelity.

It doesn’t give an absolute guarantee that it will be upheld and binding as there are grounds on which they can be set aside in some circumstances.

Requirements?

Each party needs an independent lawyer to give advice about the advantages and disadvantages of entering into a proposed ‘prenup’.

Both parties must give full and frank detailed disclosure of their financial positions because if rights are being given up for future property settlement and spouse maintenance, by parties then they must make an informed decision about exactly what it is they are giving up.

Are they worth the paper they are written on?

Yes, if properly and carefully drawn up by a lawyer they are valuable financial protection and insurance against what may otherwise happen if you don’t have one.

Where there is a foreseeable risk of harm to the employee, the employer must take steps to protect the employee from that harm.

In order for the risk to be foreseeable it does not have to be probable that the risk of injury will occur, rather, it is sufficient that the risk be not far fetched or fanciful.

Although it is generally accepted that an employer is not required to prevent the criminal conduct of third parties, the employer does have a duty to take reasonable care to protect employees from criminal behaviour of third parties, random and unpredictable as such behaviour may be.

But what steps should or could an employee expect be taken to prevent injury, for example, by an armed robber to a shop assistant, or, an assault by a co-employee, or by other criminal activity?

This issue was the principal matter for determination by Judge Richard Jones of the District Court of Queensland when he was confronted with and had to consider the facts in the recent case of Miles -v- Brisbane City Council.

Mr Miles was a BCC employed bus driver. On the evening of 28 June 2006 he was working alone on a night shift. He stopped his bus near to some toilet facilities accessible only by employees of the defendant Council, and which were locked to prevent public use.

To access these facilities Mr Miles was required to walk some 50 -60 metres from the bus stop where he had stopped his bus. The lighting in the area was poor. Mr Miles had to walk across uneven ground devoid of footpaths and where trees, bushes and shrubs had been left to grow untrimmed.

At the relevant time it was the policy of the defendant Council to require its bus drivers to take with them the bus’s takings whenever leaving the bus.

On his return journey from the toilet facilities back towards the bus he was attacked by an unidentified assailant armed with a piece of timber and robbed of the bus’s takings, and of his personal wallet.

As a result of the assault Mr Miles was injured, taken away by ambulance, and could not complete his shift. He was not able to return to work for several months because of the restrictive impact of his injuries upon his capacity to work.

In deciding whether or not the defendant Council had been in breach of its duty of care owed to Mr Miles, Judge Jones reviewed the decided cases concerning the question of employer liability for criminal activity perpetrated upon the employee by a third party.

Emerging from those cases is the principle that employers could and would be found liable for injury suffered by their employees from the criminal act of a third party if there had been a failure by the employer to implement a safe system of work in circumstances where it was foreseeable that their very failure to do so exposed the employee to an increased risk of injury.

If, said Judge Jones, there was a real risk of injury to an employee, in his or her capacity as an employee, the employer must take reasonable care to avoid that risk by devising and maintaining a method of operation that eliminated that risk, or by the provision of adequate safeguards against the eventuality of that risk.

What then could or should the defendant Council have done to prevent the risk of injury to Mr Miles as he returned from his visit to the private toilet facilities?

Mr Miles argued that there were several reasonably practical means of addressing the risk of injury which were available to the defendant Council including:

• the provision of a lockable area on the bus which would allow drivers to secure the cash tray within the bus when the driver left the bus;

• adequately checking and maintaining all bus termini and washroom/toilet facilities, including overgrown vegetation;

• providing suitable lighting and fencing and the constructing of footpaths;

which would have protected him from being a target for the assailant, and alerted him to the presence of a potential attacker.

The defendant Council on the other hand argued that no reasonably practical steps could be taken as a means of obviating the risk, given that the expense involved in retro fitting buses to allow for storage of cash boxes, and the cost of installing additional lighting and removing of overhead tree branches at all bus termini imposed an unreasonable requirement on the employer, particularly where the employer was not in control of either lighting or overhead tree branches on private property.

Ultimately Judge Jones held that Mr Miles had failed to prove that had a lockable space been provided for the cash box left on the bus, he might not have been assaulted, nor was it a reasonably practicable precaution or alternative which the defendant could or should have implemented so as to avoid the risk of robbery.

On that point alone Mr Miles would have failed in his case. But Judge Jones went on to hold that the third leg of his case had been succesfully made out.

The Judge found that the environment surrounding the incident site was inadequately lit, in an overgrown state, and exposed persons such as Mr Miles to the risk of being robbed. He said that even though some of the overgrown vegetation was actually upon private property, this offered no excuse to the liability of the defendant Council.

On 23/09/2011 the Court of Appeal unanimously dismissed an appeal by the Council against Judge Jones’ decision.

What message does this case bring to your workplace situation?

Are you involved in the hospitality industry, the nursing profession, a trade, industry, education, a shop assistant, bank teller, console operator or any other form of engagement where you may deal with unknown third parties?

How safe are you really?

What do you think of the steps that your employer has implemented to provide for your safety at work or coming to or going from work?

How many safeguards can you identify which your employer has installed for your personal protection?

Cameron McCracken
Principal
Hall Payne Lawyers

We will set out in plain English the terms and conditions of the No Win – No Fee arrangement in our written Costs Agreement which we are obliged by law to provide to you for you to sign.

To find out whether we believe you have a case which is worthwhile pursuing, please complete the online enquiry or, call us on 1800 659 114.

1. General Damages
2. Past Economic Loss
3. Future Economic Loss
4. Past and Future Superannuation
5. Past Special Damages
6. Future Special Damages
7. Past and Future Care and Assistance (also Known as Griffiths v Kerkemeyer Damages)
8. Fox v Wood Damages

General Damages

This head addresses the actual injury itself and its consequences.  That is, your pain and suffering, your level of permanent impairment as assessed by the appropriate medical specialist, and the way in which the injury has impacted on your life physically, socially and emotionally.  To arrive at a figure we take into consideration the damages awarded by the Courts to plaintiffs with similar or same injuries and also a scale of injuries outlined in legislation.

To arrive at a figure your injuries are assessed by medical experts and reference is then made to a “scale of injuries” set out in the legislation applicable to your claim.

Past Economic Loss

This is your lost nett wages/salary from the date of the injury up to the present time.  The period of time calculated will include times when you were in receipt of workers compensation and/or Centrelink benefits as these payments will need to be refunded at the successful conclusion of your claim.

Future Economic Loss

This head of damage can be difficult to quantify as it requires us to attempt to predict the future.  We need to take into account your potential earning capacity and your actual residual earning capacity since the injury, if any.  Once we arrive at an amount of nett weekly loss we can then calculate your future loss. Your future economic loss is not calculated by simply multiplying out your weekly loss of income by the number of weeks into the future you will be off work.  The Supreme Court Act provides for the method of calculation. Simply put however, we apply a standard multiplier rate of 5% to a weekly figure based on the number of years it is anticipated you would have worked but for this injury.  This 5% multiplier rate is applied because it takes into account the fact that you are receiving the money now. The amount however is almost always reduced or discounted for life’s contingencies. Life’s contingencies simply refer to the unexpected things that can occur in the future that are unknown at the time of settlement. Things such as another illness in the future effecting your work capacity, a cure or remedy for your injury resulting in you being able to return to work, a change in career which results in higher earnings in any event by way of example. The amount of the discount applied varies depending on factors such as age, gender, occupation, education, general health etc, but normally the courts will apply a discount between 15 and 30%.

Past and Future Superannuation Contribution

This is the superannuation that should have or would have been paid by an employer based on your earnings lost. In most instances the method of calculation is 9% (compulsory employer contribution) of the total past and future economic loss claim. If your employer was making additional contributions over and above the compulsory amount in some instances this additional amount can be claimed.

Special Damages

This is to reimburse you for monies paid out for things like medical expenses, pharmacy, travel etc.  It also includes medical expenses incurred on your behalf by organisations such as WorkCover, Medicare, Commonwealth Rehabilitation Service and Private Health Funds.
Any amounts paid out by these organisations will need to be refunded to these organisations from settlement funds at the conclusion of your claim. 
Special damages also include future expenses for medical, travel and pharmacy and can also include paid services such as lawn mowing, house cleaning etc.

You can also claim for future special damages. Based on the medical evidence and past expenses we arrive at a weekly figure and multiply it using the 5% tables. This method of calculation is similar to the future economic loss claim.

Fox v Wood

This head of damage is the amount of tax paid to the ATO if/when you were in receipt of WorkCover benefits and is claimable.

Gratuitous Care and Assistance

Gratuitous assistance refers to the assistance provided to you by members of your family or household or friends and associates, which is unpaid assistance. It includes assistance with tasks that you did yourself prior to the injury but which you can now not do because of the injury. Tasks such as self-care, washing clothes, hanging clothes on the line, mowing the lawns, general house maintenance and house work fall into this category of claim. Recently it was determined by the Courts to include unpaid services for maintenance of a family business.

Refunds

From any agreed settlement sum or award for damages from the court certain statutory refunds need to be made. These include WorkCover statutory claim payments (medical, hospital, wages etc), Centrelink benefits paid, Medicare expenses (usually what you have bulk billed to Medicare) and the Commonwealth Rehabilitation Service. If you are in receipt of income protection payments they may also need to be refunded to the insurer.

Medicare

Before any defendant can release settlement monies to you, any refund to Medicare Australia must be determined and finalised.  Without a current Notice of Charge (which simply identity’s the medical attendances which relate to the injury) the Defendant must forward to Medicare Australia what is called an “advanced payment” representing 10% of gross settlement monies. Once the amount to be refunded is determined Medicare will then refund to you the difference.

Centrelink

You should be aware that the payment of damages may affect all Centrelink payments with the exception of family payments. 
If you receive a lump sum compensation payment, Centrelink will work out what period of time the compensation payment covers.  This period of time is called the preclusion period.  The preclusion period could be for a time in the future or a time in the past or both.  During the preclusion period in the future you cannot be paid Centrelink income support; except family payment.  Centrelink payments paid to you during the preclusion period in the past must be repaid to Centrelink from your lump sum compensation payment.