Macrossan & Amiet Solicitors. news update apr 11 > issue 34. By Sarah Smith

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1 Macrossan & Amiet Solicitors update apr 11 > issue 34 in this issue page 1 page 2 page 3 page 4 page 5 page 6 page 7 Nuisance Neighbours Injuries in the workplace - How to make your claim for compensation Injuries in the workplace - How to make your claim for compensation continued from page 2 Driver Distractions: Mobile Phones and Driving Laws Driver Distractions: Mobile Phones and Driving Laws continued from page 4 Celebrating 259 Years of Service Strength of Written Agreements Our March chuckle Nuisance Neighbours continued from page 1 page 8 Profile - Vanessa MacDonald Our April chuckle Would you like to receive your letter by ? Simply send an with Subscribe in the subject line to letters@macamiet.com.au Liability limited by a scheme approved under professional standards legislation With the Queensland population growing and people beginning to live in closer proximity to one another, neighbourhood disputes are on the rise. In fact, a recent online survey by the Bligh Government found that almost 80% of participants had some sort of dispute with their neighbour. The majority of Queenslanders want to live peacefully with their neighbours and try to resolve any problems amicably. However, efforts to resolve conflicts like overhanging trees, a barking dog, or a fence in need of repair can cause a great amount of frustration and stress for the affected parties and more people are beginning to look for other remedies. At present there is not a lot of statutory assistance for people affected by problem neighbours and so the majority of those affected in Queensland are forced to rely on the common law remedy of nuisance. The law of nuisance attempts to balance competing interests between the person who has a right to use their land as they see fit and the Nuisance Neighbours By Sarah Smith Sarah Smith person who has a right to enjoy their land without interference. Nuisance occurs when one neighbour s activities damages or interferes with another s enjoyment of their land to an unreasonable extent and can include issues such as dividing fences, overhanging tree branches, water run off from the neighbouring property and noise pollution, as discussed below. Dividing Fences Owners of adjoining properties are equally responsible for the construction and repair of a dividing fence and so it is inevitable that decisions regarding these fences often lead to friction between neighbours. In fact, Continued on page 7

2 2 Macrossan & Amiet Leading the Way Injuries in the workplace - How to make your claim for compensation By Paul Formosa Paul Formosa We all know workplace health and safety is paramount in today s working environment. Yet, despite the various regulatory measures relating to occupational safety currently in place, workplace accidents still occur and often have lasting impacts on all parties concerned. Workplace injuries are unfortunate events for both an employer and their injured employee. The employer often suffers by having an employee away from work or working at a reduced capacity for an extended period. More importantly, an employee and their family are often affected both financially and emotionally following a workplace injury. There are the obvious and immediate increases in medical costs such as hospital bills, doctor s appointments and pharmaceutical expenses and the need to have a continued income stream. The Workers Compensation and Rehabilitation Act 2003 is the piece of legislation governing compensation claims for persons injured at work. Section 5 states that the Act establishes the workers compensation scheme in Queensland to provide benefits to workers who sustain an injury in the course of their employment or a worker s family if the injury sustained results in the worker s death. The compensation scheme is also intended to encourage improved health and safety in the workplace. History Queensland s workers compensation scheme has existed for over 100 years and has its roots in the Employers Liability Act of 1886 which allowed employees to seek common law damages in certain situations. Up until 1916, employers were expected, but not forced, to hold accident insurance coverage for their employees. This changed when the Workers Compensation Act of 1916 replaced existing legislation, made it compulsory for employers to hold insurance coverage for their workers and established the State Accident Insurance Office which went on to become the State Government Insurance Office (SGIO). SGIO was granted the monopoly of workers compensation insurance. In 1978, the State Government transferred the overseeing of workers compensation from SGIO and the Queensland Treasurer. The Workers Compensation Board of Queensland was formed and became part of the Department of Labour Relations. The definition of worker under the Workers Compensation Act changed in 1986 to exclude company directors, partners and trustees (unless specifically insured) and clarified that contractors and subcontractors were deemed workers. An inquiry into the workers compensation scheme in 1996 resulted in 79 recommendations for change. The majority of these recommendations were endorsed in the WorkCover Queensland Act This Act also established WorkCover Queensland as a separate, statutory body to replace the compensation board. WorkCover s two clear roles - providing insurance as a commercial provider and enforcing the WorkCover Act as regulator, changed in 2000 when WorkCover s regulatory division moved to separate premises and was renamed Q-COMP. In 2003, Q-COMP was established as the body to regulate the workers compensation scheme under the Workers Compensation and Rehabilitation Act Making a compensation claim An employee who is injured at work and is a worker as defined in the Workers Compensation and Rehabilitation Act can lodge a claim for workers compensation under the statutory benefits scheme regardless of who or what caused the workplace injury. An employee will be classified as a worker if they are employed under a contract of service,

3 3 Macrossan & Amiet Leading the Way Injuries in the workplace - How to make your claim for compensation Continued from page 2 irrespective of their tax-paying status, if they earn a salary or a wage from their employer, have set working hours and are supervised, and can be dismissed by their employer. An injured worker has six (6) months from the date of consulting a doctor to make a claim for statutory benefits. If a compensation claim is lodged more than 20 business days after first consulting a doctor, WorkCover will only pay compensation up to 20 business days prior to the application being lodged. There are various ways for an employee to make a claim for statutory benefits. Claims can be lodged online at the WorkCover website, by phone or fax, at a doctors surgery or by mail and in most cases the assistance of a solicitor will not be required. It is important that if you do intend on making a statutory benefits claim, you notify your employer of your injury as soon as possible. To lodge a claim an injured employee must also consult a doctor and get a Workers Compensation Medical Certificate completed. Once a claim is lodged, WorkCover must assess the compensation application, taking into account whether the injured person is a worker, whether they suffered an injury and whether their employment was a significant contributing factor. WorkCover can take up to 20 business days to decide a compensation application. If a compensation application is accepted, the benefits and payments WorkCover may pay include medical treatment, hospital expenses, rehabilitation expenses, travelling expenses, weekly benefits for loss of wages whilst injured and, finally, a lumpsum payment for permanent impairment. Generally, the weekly benefits payments for loss of wages will be equal to 85 per cent of the injured worker s preaccident earnings. This type of compensation claim will come to an end and a worker will cease receiving weekly benefits when WorkCover assesses the worker is fit to return to work or the injury has reached is maximum medical improvement and no further treatment will be beneficial. If the worker is assessed to be left with a permanent impairment, they will usually be offered a lump-sum payment for their assessed permanent impairment. If an injured worker is assessed as having a permanent impairment of less than 20 per cent, as a result of their injury, and they accept WorkCover s lump-sum offer, they will then be precluded from making a common law claim for damages. An injured worker can also make a common law damages claim. The worker must prove their employer was either negligent and/or breached the employer s duty under a contract of employment. An injured worker has three (3) years from their date of injury to make a common law claim. Common law claims are often more difficult and longer in duration than statutory benefits claims. As such, and given their complex and legal nature, workers seeking common law damages often engage a solicitor. Common law claims are often settled by a negotiation. Whilst in some cases WorkCover may have to meet some of an injured workers legal expenses, a claimant will usually have to bear their own legal fees. Upon settlement being reached in a common law claim, money will often be deducted or paid-back to various entities such as Centrelink or Medicare. If you have been injured at work and need any assistance in progressing your statutory claim or guidance in relation to making a common law claim, please do not hesitate to contact one of our experienced personal injury practitioners. Proudly supporting the local community.

4 4 Macrossan & Amiet Leading the Way Driver Distractions: Mobile Phones and Driving Laws By Danielle Fitzgerald Danielle Fitzgerald Most drivers are aware that it is illegal to use a mobile phone when driving, but the application of driving laws in Queensland extends further than just using a mobile phone. Queensland drivers should be aware that even the touching of a mobile phone is considered a traffic offence unless the car is parked in a stationary position with the handbrake on. Pursuant to section 300 of the Transport Operations (Road Use Management- Road Rules) Regulation 2009 (hereafter the Regulations ) it is an offence for a driver of a vehicle to hold a mobile phone (whether or not engaged in a phone call), send, write or receive text messages or operate any other function of the phone. Most drivers have used a mobile phone in the car. However, as soon as that urgent call is picked up or that text message is sent during peak hour traffic, motorists are instantly considered distracted drivers. There is a big misconception that it is acceptable to answer the call if you are using a hands-free phone. This is not necessarily the case. In order for drivers to operate a mobile phone while driving, to make or receive phone calls, the mobile phone must either be mounted in an accessory designed for that purpose, or attached to a blue tooth device or headset. In Queensland all drivers are banned from using a hand-held mobile phone whilst driving. There are, however, extra restrictions for learner, P1 type licence holders under 25 years of age and P1 type licence holders returning from a disqualification where, at the time of the offence, they were under 25 years of age. These licence holders are not permitted to use hands-free kits, wireless headsets and loudspeaker functions. Passengers and supervisors of these drivers are also banned from using mobile phones in loudspeaker mode while the car is being driven. A 2009 study of 300 Queensland drivers conducted by the Department of Transport and Main Roads indicated that distracted drivers were a contributing factor to road trauma and fatalities with 51% of motorists admitting to talking on a hand-held mobile phone while driving. The Department of Transport and Main roads have taken measures to prevent this behaviour by advertising the consequences and legality involved but drivers are still not getting the message. Australian authorities are now proposing to ban the use of mobile phones all together. If drivers were aware of the impact driving while talking can have on their safety, as well as their driving record, perhaps they would be less inclined to pick up the phone. Most Queensland drivers do not know that in some situations they may be issued with more than an infringement notice. The general law as stated in the Regulations is that using a handheld mobile phone while driving is considered an illegal offence in Queensland with a penalty of three demerit points and a $ fine. If a driver wishes to contest the infringement the matter will be heard before the Magistrates Court where it is the duty of the Police to prove that the person was driving a vehicle whilst holding and using a mobile phone and that vehicle was moving or stationary, but not parked. Generally, motorists will be served with an infringement notice but in some circumstances a driver will be charged with a more serious offence of dangerous operation of a vehicle, which is an offence under section 328A of the Criminal Code Queensland. A driver who interferes with the operation of a vehicle that is dangerous to the public will commit an indictable offence under this provision with a maximum penalty of three years imprisonment. In order for the Police to prove their case before the Court, it must be evidenced that the person operated the vehicle or interfered with the operation and that interference was in fact dangerous. There are clear road rules prohibiting the use of hand held mobile phones while driving, sitting in traffic and even stopped at the traffic lights. Queensland

5 5 Macrossan & Amiet Leading the Way Driver Distractions: Mobile Phones and Driving Laws Continued from page 4 road rules are strictly adhered to, and even checking the time on a mobile phone will be considered a traffic offence regardless of the fact that it is no different from checking the time on a watch. The law in this regard is open for criticism because arguably there is no difference, a distraction is a distraction whether it be checking the time, looking at a billboard, or slowing down to look at an accident. All visual or physical distractions whether it is phone related or not, lead to delays in a driver s reaction. The law in regards to mobile phone use is more significant in current times as technologically advanced communication is now a primary cause of distraction. Motorists should be aware of the legal impact an offence such as using or holding a mobile phone in prohibited circumstances as it can have upon their traffic record and in some cases criminal record. The Law in Queensland in relation to traffic offences are enforced in order for drivers to remain alert for the entire time they are behind the wheel. Distraction can occur either willingly or unwillingly but in any instance such a distraction can lead to delays in driver reactions, therefore increasing the likelihood of road accidents. In the future, drivers may consequently be subject to a National ban on mobile phone use in vehicles in order to prevent further casualties. Celebrating 259 Years of Service Saturday evening the 26th February, 2011 was used to celebrate 259 years of service to Macrossan & Amiet by 15 staff members. The Partners of Macrossan & Amiet recognised those staff members who had been in their employ for greater than ten years. Some, in fact, had been there for 35 years. The dinner was held at Leprechaun Park for those staff members and their spouses and the Partners and their spouses. Staff members and their Years of Service Barbara Kallio 35 years Carmel Podosky 32 years Jenny Moohin 22 years Lynn Staniland 21 Years Allison Bugeja 20 years Val Matthews 20 years Karen Lean 17 years Tina Sorensen 14 years Sharon Chidley 13 years Sara Paskins 13 years Denise Cocks 11 years Heidi Mackenzie 11 years Kim Groves 10 years Hayley Ewart 10 years Kathy Bourke 10 years Two of our staff members from the Proserpine/Whitsunday offices namely, Val Matthews (20 years) and Lynn Staniland (21 years), were apologies as they were unable to attend. The night was filled with good humour from Damian Carroll who presented a very eloquent speech detailing all the staff members special traits and contributions to the firm. Ultimately the night also involved some sadness as it recognised Lynn Staniland, of some 21 years, who had that week resigned due to ill-health. There were also memories of our previous long-term employee Desley Fay Brown who had served with the firm from 3/12/1973 to 23/4/2006. The night was enjoyed by all. It would be hoped it would be an annual event to recognise the staff s ongoing support to the firm, to clients and also to make recognition of other staff members as they get to the 10 year milestone. Staff present at dinner: Sharon Chidley, Karen Lean, Heidi Mackenzie (front), Allison Bugeja (back), Carmel Podosky, Kathy Bourke, Kim Groves, Jenny Moohin, Tina Sorensen, Barbara Kallio and Hayley Ewart Proudly supporting the local community.

6 6 Macrossan & Amiet Leading the Way Strength of Written Agreements By Steven Hayles Steven Hayles A contract is a legally enforceable agreement between two or more parties with mutual obligations. While contracts are not necessarily always required to be reduced to writing to be enforceable, a properly drafted written agreement can reduce the risk of a dispute arising between the parties at a later stage through the use of clear and specific language. In circumstance where a dispute does occur, the strength of a written agreement is that its terms are recorded and readily available for all parties to consider or review. This may simplify the issues in dispute and may lead to an early resolution which saves time and money for all parties involved. The strength of a properly drafted written agreement over a poorly drafted version or an oral agreement may seem a point of common sense to the readers of our letter. A poorly drafted written agreement can be ambiguous and may not adequately protect a party s interests. Similarly, where disputes arise between parties who have relied on oral agreement then parties will have to rely on their own memories to recall the terms or nature of the agreement. A party s ability to recall the exact terms or nature of the agreement is of course likely to fade over time. This will make the task of proving a client s case before a Court all the more difficult Despite this, some individuals can be put off engaging a solicitor to draft or revise the terms of an agreement negotiated with another party. This may be because there is a concern that referring the matter to a solicitor may upset the other party and may lead to a delay to the commencement of the agreement. It may also be because there is a concern about the costs that might be incurred when engaging a solicitor to draft or revise the terms of the negotiated agreement. When considering the issue of legal costs, a client should balance the time and expense of having a solicitor draft or revise an agreement against the costs of litigation which may arise from a poorly drafted written agreement or oral agreement. Quite often the costs of litigation can run into tens of thousand dollars. A prudent client should also be careful of a hastily negotiated agreement as the pressure of a deadline can often be used as leverage by a party to ensure a better deal for themselves. It can also be useful to have another set of eyes look over the terms of an agreement to gain a different perspective before an agreement is signed off on. If you are negotiating an agreement, whether that be the purchase of residential property, an employment agreement, a lease of a commercial premises or some other type of agreement, you should consider the benefit of engaging our experience in these matters before you commit yourself to the terms of that agreement.

7 7 Macrossan & Amiet Leading the Way Nuisance Neighbours Continued from page 1 dividing fences are the leading cause of all neighbourhood disputes in Queensland. If you are planning to build an adjoining fence you should write to your neighbour outlining a proposal for the fence including an estimate of the cost, the neighbour s contribution and the method of construction. If your neighbour refuses to contribute, challenges the cost or disagrees with the type of fence or repairs, you must not go ahead and build or repair the fence. If you both cannot reach an agreement after one month of initially writing to your neighbour, you have the following options: a) Contact a dispute resolution centre to organise a mediation with your neighbour; b) Make an application to the Queensland Civil and Administrative Tribunal ( QCAT ). QCAT hears fence disputes which are valued up to and including $25,000; or c) Seek legal advice to commence proceedings in the Magistrates Court to resolve your dispute. Overhanging Trees Overhanging or intrusive trees are the second leading cause of neighbourhood disputes. Usually, any trees that are overhanging or tree roots that are intruding onto your property will be considered a nuisance. Unfortunately however, to have an action in the law of nuisance, the tree must have already caused damage to your property. Some councils will intervene and remove trees where there is an imminent danger to a person or property and so, if you have a concern, you should first contact your local council. If the council cannot assist and damage has occurred, you should seek legal advice to commence proceedings in Court. The Court can grant an injunction requiring that your neighbour cut down the dangerous or intrusive trees or branches and award damages to compensate you for the damage caused. Noise Pollution Whether it s a barking dog or loud parties, noisy neighbours can cause a great deal of frustration, anxiety and, often, lost sleep. If you have a complaint about noise from music or parties you will need to call the police. As far as barking dogs are concerned however, your first step should be to try talking to the owner to make sure that they are aware of the problem and see if they are willing to take some action to stop the dog barking. If that doesn t work than you should make a complaint to the local council who will issue a notice to your neighbour and, if the problem continues, can issue a fine. Water Runoff If you own the property or live on the property and cause water to flow onto your neighbour s property, you may be responsible for the damage caused. If water naturally flows that way and you have not done anything to cause the problem, you may not be responsible. This is a complex area and you should get legal advice. If you have a problem with a neighbour, your first step should be to try talking to them about the issue. Sometimes people are not even aware that they are disturbing the peace and enjoyment of their neighbours so, if you feel comfortable doing so, that is always the best place to start. If you do not feel comfortable talking to your neighbour, or if talking to them does not help, you can contact your local dispute resolution centre to arrange a mediation with your neighbour or, alternatively, seek legal advice to resolve the problem. Contact details for the Mackay Dispute Resolution Centre are as follows: Qld Mackay Court House 12 Brisbane Street Mackay Qld 4740 Phone: (07) If the situation ever becomes serious or if you feel your safety, property or pets are in danger, you should contact the police immediately. Proudly supporting the local community.

8 8 Macrossan & Amiet Leading the Way If you have any queries about any of the articles in this letter, please feel free to or phone (Mackay) or (Whitsundays) to speak directly with the author of the article. Contact us For further information about the services offered by Macrossan & Amiet Solicitors please contact your nearest office: Mackay Amiet House 55 Gordon Street Mackay QLD 4740 Ph Fax Whitsunday Suite 4 Whitsunday Business Centre 230 Shute Harbour Road Cannonvale QLD 4802 Ph Fax whitsundays@macamiet.com.au Proserpine 18A Chapman Street Proserpine QLD 4800 Ph Fax mac@macamiet.com.au profile - Vanessa MacDonald Growing up in Brisbane I studied hard at school and finished when I was 16 with aspirations to study medicine. At the time, Queensland Universities required you to have an undergraduate degree before you could enrol in medicine, so I decided to do a nursing degree. This was a great move as half way through nursing I had completely changed my mind about doing medicine. I finished nursing and worked for a year which gave me time to think about what I really wanted to do with my life and I soon knew that I wanted a legal career. A year after finishing my nursing degree I enrolled in postgraduate law at Griffith University in Brisbane. I loved my time spent at university and finished with honours while still working full time as a nurse. An opportunity came up for my partner (now my husband) and I to move to Darwin so I spent my professional year working for the largest law firm in Darwin. After this we moved back to Brisbane where I worked for a mid-tier firm doing Defendant Compulsory Third Party Insurance Litigation. My husband and I then decided we needed a break. We travelled around Europe and Asia and following this, we had two children. The time flew by and I Vanessa MacDonald couldn t believe that I had been away from law for four years. We moved to Mackay in October 2010 for my husband s work. I thought it was now or never so I approached Macrossan & Amiet to see if they had any part-time positions for solicitors in their family law division. Fortunately, Damian Carroll was willing to accept me into his very busy team and I started work in late January. Returning to work has definitely been a huge challenge but one I have really enjoyed and I am extremely lucky to have Damian s guidance and experience not just in family law, but all of the other areas of law that he covers. I am learning so much and am happy I took the leap and came back to the profession. Our April chuckle: We like to have a laugh at ourselves... A lawyer dies and goes to Heaven. There must be some mistake, the lawyer argues. I m too young to die. I m only 55. Fifty-five? says Saint Peter. No, according to out calculations, you re 82. How d you get that? the lawyer asks. Answers St. Peter, We added up your time sheets.