Child Sexual Abuse Can Occur in Any Setting

With changing attitudes and perceptions towards Childhood Sexual Abuse, our understanding of Childhood Sexual Abuse is developing and we are confirming that sexual abuse can occur in almost any setting.

We have learnt that at the Celtic Boys Club, which is a famous youth football club based in Glasgow, Scotland, that they have had numerous allegations of inappropriate behaviour and subsequent Child Sexual Abuse.

Allegations have recently been made against the founder of Celtic Boys Club and a former youth coach Jim Torbett during two stints at football club from the mid-1960s to 1996.

The players who had made the allegations noted that they didn’t feel like they could tell anyone about what was going on, and that this man had a sense of control over them as he was in a position of authority, and had obtained the trust of the their families. It was stated by one of the victims that it “was as if he had a hold over us.”

Similar stories have been heard within sporting organisations in Australia prompting the Royal Commission into Institutional Responses to Child Sexual Abuse to examine the child protection policies of organisations including; Cricket Australia, Netball Australia, Little Athletics, Tennis Australia and Football NSW.

This disturbing information indicates how vigilant people must be in all facets of life when it comes to the protection of children.

However as Sexual Assault Lawyers, at Koffels we are experienced in claims of this nature and we can provide advice and help to victims.   We advise that if you have experienced Childhood Sexual Assault please do not hesitate to contact our office for a confidential discussion.

William Yeo

Solicitor

NEW PROPOSALS WILL MAKE IT EASIER TO CLAIM FOR CHILD SEXUAL ABUSE SURVIVORS

Legislation reform tabled for Child Sexual Assault Survivors

The Australian Capital Territory (“ACT”) is leading the way with reforms to make bringing a claim against abusers for child sexual assault easier.

The ACT along with New South Wales and Victoria have followed The Royal Commission into Institutional Responses to Child Sexual Abuse recommendations and removed statutory limitation periods, as these were seen as a significant, barriers to survivors of child sexual assault pursuing civil litigation.

The ACT however,  have decided to go further, and broaden the scope of the laws in making it easier for survivors to bring an action by changing the definition of a child abuse claim.

The proposed amendments in the ACT alter the definition of a child abuse claim, and remove the requirement for the abuse to occur in an institutional setting.

The Bill also recognises that barriers still exist, regardless of the context, in which the child sexual abuse took place. The Bill will allow more survivors to seek redress and justice through civil proceedings.

The ACT Attorney-General Gordon Ramsay stated that “These amendments build on reforms introduced last year to remove limitation periods for child sex abuse claims in institutional contexts,” and “These changes recognise the length of time that it can take for survivors of child sex abuse to disclose abuse, and remove barriers to justice for these people, no matter the context of the abuse.”

These possible amendments are in any event an encouraging reminder to highlight how attitudes have changed and are continuing to change to assist survivors of abuse in obtaining rightful redress, and they are a further step in the right direction for victims seeking justice and compensation.

Koffels are experienced in claims of this nature and we can provide advice and help to victims.   We advise that if you have experienced Childhood Sexual Assault please do not hesitate to contact our office for a confidential discussion.

Five Step Guide to making a Personal Injury Claim

Making a Personal Injury Claim can be a daunting process, especially if you have little or no idea as to what is involved in making that claim.

This 5 step guide will explain what is involved in a Personal Injury claim so that you know a bit more about what has to happen, and what is involved.

Step 1

The first step, which for many is the hardest, is to make contact with a law firm that specialises in Personal Injury compensation claims. At this point you will have the opportunity to speak to a personal injury lawyer and tell your story. The important thing to know about this discussion is that it is entirely confidential, and no one else will know the contents of your discussion.

Depending on each individual law firm, once the lawyers determines that you have a claim that they can pursue on your behalf, you will be asked to enter into a cost agreement for the lawyers professional fees. The agreement will set out clearly the structure of those fees and your obligations under that agreement. . In many cases, but not necessarily all, Personal Injury cases are run on a no win no fee basis.

*Note: A cost agreement is not necessary for NSW Workers Compensation claims.

You will also need to provide the lawyer with further information about yourself and provide them with written authority to act on your behalf.

Step 2

The lawyer will need a statement on how you were injured and they will normally assist you in drafting a statement. This will help the lawyers working on your matter identify the important events in your claim, and it will provide a corner stone for the lawyer in moving your matter forward.

Step 3

In order to obtain evidence to support your claim, you will generally have to be assessed by a medical expert to make a determination about the extent of your injury, your treatment and disability, but most importantly the expert will be asked to provide their expert opinion on the link between the incident and the injury which they observe and assess during the appointment.

The medical expert will then provide their report and if the report is in your favour, it will provide the necessary evidence to establish your injury.

Step 4

Once you have a favourable expert report, your lawyer will be able to advise you of the entitlements you can pursue. The lawyer will look at the loss you have sustained from the injury, such things as out of pocket expenses, wage loss, pain and suffering, and depending on your matter, various other areas of loss.

You will then need to instruct your lawyer whether you want to pursue the entitlement they have identified.

Step 5

The lawyer acting on your behalf will continue gathering evidence to establish the loss you have suffered, to substantiate exactly what costs you have incurred and the financial loss caused by the injury.

This can be time consuming but it is essential. Your Lawyer, will then be able to pursue the greatest amount of compensation possible.

If you have been unfortunate enough to have been involved in an accident requiring treatment or time off work, you can contact the team at Koffels to have a confidential discussion about your legal rights and entitlements.

William Yeo,

Solicitor

with Sherilyn Dunkley Senior Associate

Wake up people sexual harassment in the workplace exists!

Have you ever been made to feel uncomfortable in your workplace by another staff member? Or have you experienced unwanted advances or unwelcome conduct from another staff member? If so you may have been sexually harassed at work.

A National Phone Survey conducted by the Australian Human Rights Commission in October of 2008 showed that 22% of women and 5% of men have been sexually harassed in the workplace.

The Australian Human Rights Commission defines Sexual harassment as any unwelcome conduct of a sexual nature. If a reasonable person would anticipate this behaviour might make you feel offended, humiliated or intimidated, it may be sexual harassment. Sexual harassment is unlawful under the Sex Discrimination Act 1984 (Cth).

Some examples of behaviour that may be sexual harassment include:

Sexually suggestive comments or jokes;
Intrusive questions about your private life or physical appearance;
Inappropriate staring or leering;
Unwelcome hugging, kissing or cornering or other types of inappropriate physical contact; and
Sexually explicit text messages, images, phone calls or emails.

What to do if you feel as though you have been sexually harassed in the workplace?

Your first step must always to be to report it to a supervisor or someone holding a senior position in your office or company. This may be extremely difficult to do, however evidence shows that reporting is an effective way to make the sexual harassment stop. Statistics developed by the Australian Human Rights Commission’s Sexual Harassment National Telephone Survey in 2012 make evident that 45% of workplace sexual harassment stops after a complaint or report is made.

What to do if reporting is not an option?

Sometimes, reporting an incident of sexual harassment might not always be a viable or successful option. For example, in the matter of Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728, a woman working in a civil engineering company in Melbourne was being subjected to shocking sexual harassment. She was being touched inappropriately, verbally abused and received multiple sexual insults, from male co-workers in her company.

Her concerns were laughed at and complaints ignored by her supervisors. This forced the lady to seek legal advice and the matter was taken to court. Subsequently she sued her employer for damages arising out of the sexual harassment.

The woman was diagnosed with several psychiatric conditions, including depression and post-traumatic stress disorder as a result of the sexual harassment. It was noted in the medical evidence that she was unlikely to ever work again.

She was consequently awarded $1.3 million in damages by the Victorian Supreme Court for economic loss, treatment costs and pain and suffering.

This case indicates that employers cannot simply ignore complaints made by their employees in regards to incidents of sexual harassment and expect to get away with it. If someone has made a complaint, an employer must take appropriate action.

If you have been unfortunate enough to have been a victim of sexual harassment in the workplace, the team at Koffels is experienced with this type of work, and is more than happy to help you obtain rightful compensation.

William Yeo

Solicitor

Koffels Solicitors & Barristers

A step by step guide in what to do if you have been involved in a Motor Vehicle Accident /what should you do if you are injured.

Travelling by car in Australia to see friends and family over any holiday period can be a happy occasion, but generally speaking, with this increase in travel, so too are the incidences of Motor Vehicle Accidents.

It can be difficult to know what to do if you are unfortunate enough to be involved in a Motor Vehicle Accident. This guide will show you what you can do to best preserve your legal rights and entitlements, if you have sustained an injury as a result of a Motor Vehicle Accident.

Step 1 – Obtain information and Call Police

First check if anyone is hurt and whether an ambulance is required, then you need to exchange details with the other driver(s) including driver’s license number and their insurer details. You need to find out which insurer provides the green slip (CTP) insurance for the other car involved. Alternatively, this information can be obtained by, calling the Motor Accidents Authority on 1300 656 919, and giving them the other car’s license plate details.

You need to report the accident to the police within 28 days, preferably as soon as possible directly after the incident. Get a police event number by asking the police if they attend the scene, or by calling the Police Assistance Line on 131 444. It is also worth attempting to obtain a copy of the police incident report.

Step 2 -Consult your Doctor

If you are experiencing any adverse symptoms as a result of the accident make sure you attend the hospital, or if it is a few days later your GP. Firstly this will help with treatment and management of your injury, but will also help document your injuries and provide information on the nature and extent of your injuries. This information will be useful when making your claim.

Step 3 -Complete an Accident Notification Form (ANF)

You will have 28 days to lodge this form with the Motor Accidents Authority or relevant CTP insurer. This form can be lodged by anyone involved in a motor vehicle accident and entitles the applicant to $5,000 worth of medical treatment and lost earnings. This cover is offered regardless of who was at fault in the accident or other liability issues such as contributory negligence. It is important to remember that if this form is not lodged within 28 days from the date of the accident, this provisional cover will be lost.

For your convenience, follow this link to the Accident Notification Form

http://www.maa.nsw.gov.au/media/forms/if-youve-been-injured/Personal-Injury-Claim-Form-MAA692.pdf

Step 4 -Personal Injury Claim Form (PICF)

If your loss of earnings and medical treatment expenses are going to be over $5,000 you need to lodge a Personal Injury Claim Form within 6 months from the date of the car accident. You can do this on your own or provide all the information relevant to the incident to your solicitor who can assist with this form, and a further claim for damages.

This form must also be lodged with the Motor Accidents Authority or relevant CTP insurer. This cover however, is only extended to those parties involved in a motor vehicle accident who were not at fault in the accident, or were only partly to blame.

This form can be submitted independently, however it may be worth consulting a solicitor prior to submitting this form.

For your convenience, follow this link to the Personal Injury Claim Form.

http://www.maa.nsw.gov.au/__data/assets/pdf_file/0005/19652/personal_injury_claim_form_MAA21.PDF

Step 5 -Seek Specialist Legal Advice

The process in regards to making a claim for compensation as a result of a Motor Vehicle Accident can become quite complicated and involved. Seeking specialist legal advice will guarantee that your claim is processed effectively and your claim for compensation is as strong as it can be.

If you have been unfortunate enough to have been involved in a Motor Vehicle Accident, the team at Koffels is experienced with this type of work, and is more than happy to help you obtain rightful compensation.

William Yeo , Solicitor

Limitation Period Lifted! Landmark Legislation Reforms for Victims of Child Sexual Abuse

The Victorian Limitation of Actions Amendment (Child Abuse) Act 2015 became operative on 1 July 2015.

In essence, the amendments act to exclude child abuse from the operation of the limitation periods under that Act.

The amendments remove the 12-year long-stop limitation period for wrongful death actions in relation to child abuse brought by dependants of a deceased victim.

It will also have the effect that no limitation period will apply to a cause of action if the action:

‘Is founded on the death or personal injury of a person resulting from –

an act or omission in relation to the person when the person is a minor that is physical abuse or sexual abuse; and

Psychological abuse (if any) that arises out of that act or omission.’

However, the judicial discretion to dismiss or stay proceedings where there is unfairness to the defendant has been expressly retained in the amending Act. For example it would still be considered unfair on a defendant institution to expect them to mount a defence when the organization closed many years ago and there were no longer any records available.

What does this means for Victims of child abuse?

These amendments are a major breakthrough for victims of child abuse in Australia and we could see the following changes;

a greater number of victims will now be eligible to seek compensation;
an increase in successful claims;
an increase in the fairness of settlement negotiations and the encouragement of defendants to focus on the merits of the case rather than limitation points; and
Lowered legal costs of both parties by not having to argue the limitation point.

Importantly a Discussion Paper published by the NSW Department of Justice in January stated:

“The changes to the application of limitation periods may also impact on the quantum of damages payable in claims. It is likely that the possibility of relying on a limitations defence has given defendants greater bargaining power in settlement negotiations, and may have resulted in matters, where the limitation point was raised, settling for lower damages then matters where it was not in issue. At this stage it is difficult to determine the impact on settlement amounts, and it is likely that this is an impact that will manifest over time.”

Will other states also consider reform?

The discussion paper mentioned above released in NSW, was implemented to gauge views from within the NSW community in regards to amending the Limitation Act 1969 NSW. This indicates that there is serious consideration as to whether NSW will also amend the Limitation Act.

The Royal Commission has encouraged National amendments so that there is consistency and transparency in how claims are dealt with, and that the Limitation argument is removed so that Defendants can’t use it to hide behind.

However, until such changes are implemented, Victoria still is the only state to abolish limitation periods in child abuse cases. In any event it is an encouraging step in the right direction for victims seeking justice and compensation, who have had claims barred by the Limitations Act.

Koffels is experienced in claims of this nature and we can provide advice and help to victims.

William Yeo

Solicitor

Dangerous recreational activities

Many people participate in recreational activities without the realisation that there is a risk that in the event they sustain an injury they may not be capable of claiming compensation. This is because the activity might be considered a Dangerous recreational activity.

What is considered a recreational activity?

A recreational activity under the Civil Liability Act 2002 (CLA) includes:

(a) Any sport (whether or not the sport is an organised activity), and

(b) Any pursuit or activity engaged in for enjoyment, relaxation or leisure, and

(c) Any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.

This definition is an almost all encompassing definition and creates an extremely large scope over what is considered a recreational activity.

What is considered a dangerous recreational activity?

According to the CLA a dangerous recreational activity is defined as a recreational activity that involves a significant risk of physical harm.

Various cases have helped create parameters around what is considered to be a dangerous recreational activity. Whilst participating in an activity similar to diving into uncertain depths of water, shooting rifles at night time, riding a Bicycle in a skate park or using a rope swing to swing into a river are all considered to be dangerous recreational activities.

What does this mean?

Under the CLA, a person is not liable in negligence for harm suffered by another person as a result of an obvious risk whilst engaging in an activity that is deemed a dangerous recreational activity. This means that where a risk is so obvious that a reasonable person in that position would have identified it, the defendant in a claim cannot be held accountable because a reasonable person would have identified the risk and not participated in the activity.

The CLA also provides that if a “risk warning” is given there is no duty of care owed to a participant in a recreational activity in respect of the risk which is the subject of that warning. A risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity.

Case Law Examples

There have been some noteworthy cases which have discussed the meaning and implications of the meaning of a “dangerous recreational activity.”

One notable case is Streller v Albury City Council [2012] NSWSC 729. Essentially the plaintiff suffered severe injuries, after attempting to do a flip of a rope swing into the Murray River. In this case the plaintiff argued that the Council had breached their duty of care for not taking reasonable precautions to prevent the plaintiff’s injuries. The plaintiff alleged that the council owed him a duty of care to take reasonable precautions to avoid a foreseeable risk of injury to him and that the duty of care was breached by the defendant’s failure to remove the rope swing, its failure to properly supervise the rope swing, its failure to ensure that the water in the area near the rope swing was sufficiently deep for the plaintiff and others to safely use the swing, its failure to warn the plaintiff it was dangerous for him to dive into the water or to use the swing, and by its failure to perform these alleged obligations, representing to the plaintiff that it was safe for him to use the swing in order to jump or dive into the water.

In short the court held that because the plaintiff had engaged in a dangerous recreational activity and that there was an obvious risk of harm associated with this recreational activity the plaintiff’s claim in negligence failed.

In acknowledging that this defence exists, every case is different and should be treated individually. This defence cannot be relied upon in every circumstance thus legal advice should be sought if you feel as though you may be entitled to compensation for injuries received even if you were participating in a dangerous recreational activity.

The High Court is presently considering the extent and reach of what is considered a dangerous recreational activity, and a judgement is expected in early 2016.

For specialist legal advice in relation to compensation for injuries contact Koffels Solicitors & Barristers, who are able and happy to advise, and help interpret situations of this nature.

William Yeo

Graduate Solicitor

Do Parents of Children Abused at School have a Claim for a Refund of Fees?

A woman has recently spoken publicly about being refunded the tuition fee’s she spent sending her son to an elite private school in Queensland for five years from 1989.

Her son was sexually abused at the school and has since attempted suicide. She initially sent letters to the school in 2010 which were rejected, however her claim was recently reviewed. The school has now decided to reimburse her for the cost of all tuition fees, adjusted for inflation, in the amount of $30,988.

The woman stated that she was ‘not asking for ‘compensation’ or any financial settlement to address the pain and suffering my family have endured’, the money paid to her was ‘a ­refund for a faulty product or ­service, not a dollar more or less’.

The faulty service in question was the quality of pastoral care provided by the school to her son. The woman’s criticisms of the school included its ‘failure to provide the product or service you advertised’ – being the provision of pastoral care to its students. A viewpoint which looks at the issue as a contractual obligations between a purchaser and the provider of a service.

This raises the question of whether schools can be liable for misleading and deceptive conduct, which is prohibited under the Australian Consumer Law (ACL), if services aren’t delivered as advertised.

Private Schools provide assurances through their website, in person and/or in advertising materials that they have certain qualities as an education provider, in order for parents to choose their school over others. So if a school claims in an advertisement that it ensures the safety and wellbeing of all students and fails to take necessary, reasonable steps to protect its students from harm, it is reasonable to argue that it can be held liable under the ACL.

Unfortunately, as the refund in this circumstance was a private decision, there is no judicial guidance as to what constitutes a “faulty education”.

While the situation reported was resolved privately, without any evidence that the refund was made on legal grounds, it does raise several significant issues regarding the provision of education and pastoral care services by schools.

We hope that the woman’s decision to speak publically about the agreement could lead to an increase in parents pursuing a similar path with other institutions.

Accordingly, Koffels is currently investigating this issue with experts in the field and will provide further information in due course.

by William Yeo