Understanding The Law.... Insurance Law

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Q. Our home recently burnt down accidentally and now the insurance company is refusing to pay the claim due to the presence of white ants although we had another claim some years ago which was assessed and adjusted by their representative and the claim paid with the white ant damage being noted at that time with ongoing renewals continuing to be offered without condition. Can they do that?
A. No. Any insurers who deny claims for these reasons have little understanding of how their policy operates as they suffered no prejudice with the operating cause being fire not white ant damage provided it has not become worse and the fire was not set to cover this up.
Q. I recently went to my chiropractor for manipulations to my neck to assist with pain management and now six months later I am far worse off than before. What can I do?
A. It would appear that the manipulations were not successful and this may be due to a failure by the chiropractor to adopt the standard of care appropriate to treat your condition which may allow you to sue him in negligence for damages.
Q. I recently went out with some friends on a Friday night and became slightly the worse for wear. Although the events of that are rather hazy I do recall that we got into a fight in which I was injured. I was taken to hospital and had treatment for various bruises, lacerations and abrasions to my body. The next day on going back to collect my car I found it had been badly damaged during the course of the fight. I claimed against my insurance company but they have refused to pay it suggesting that I was responsible for causing the damage to it. What can I do?
A. Obviously you would be able to prove there was a fight and you suffered injuries and were taken to hospital. As a result, as there would be no difficulty in determining where the fight scene was which I assume to be adjacent to your motor vehicle then in these circumstances provided your bonafides are not in doubt then the insurer should pay your claim and if they do not then you have remedies at law. Suffice to say a comprehensive motor vehicle policy covers all types of accidental damage which occurs to a motor vehicle.
Q. I was involved in a car accident and I have lodged a third party claim with the other driver’s insurance company who are refusing to pay saying that I caused the accident which is incorrect because the other driver smashed into me from the right hand side. What should I do?
A. You need to find a solicitor who is an expert in insurance property damage claims as they possess fundamentally different knowledge from personal injury lawyers who deal with workers compensation, motor accident acts claims and public liability/personal injury matters. A property damage insurance lawyer will be able to address the necessary problems you confront and should be able to get the claim paid by the other party’s insurer.
Q. Recently my son was at a sporting activity where he was playing up, physically abused by his teacher and forced to leave the event to seek medical attention as a result. Do we have a claim for professional negligence against the teacher or school as I wish to teach them a lesson?
A. Although you would be entitled to make a claim against both the school and the teacher, the question is whether you would be successful in damages. The simple answer in New South Wales is no, unless your child sustained serious ongoing injury or has suffered serious psychiatric illness. Since the medical evidence indicates that he will make a full recovery, the school should be approached to take disciplinary action against his teacher.
Q. Recently I took a couple of my newly born pups to see a local vet where they contracted a virus and subsequently died. What should I do?
A. To put it simply, you should contact the vet and say that you are looking for an apology and compensation. If the animals were not particularly valuable then it would not appear to be a case in which it would justify you retaining a solicitor. Do the best you can in the circumstances.
Q. What happens if someone communicates a full transcript of what a member of parliament said in parliament through the media which has had the effect of seriously impacting my business?
A. This does not amount to defamation as it is the record of a conversation the subject of parliamentary privilege and where true there is no damage at law.
Q. Recently my son was overcome by a smoke machine at a school function which triggered a severe asthma attack, resulting in him being rushed to hospital and admitted to intensive care where he responded to treatment. Is there anything we can do in the circumstances?
A. No. Although you have the potential to pursue a personal injury claim on behalf of your son, the fact that he is in the process of making a full recovery precludes you taking action for damages at common law.About the AuthorNominate a Lawyer is a network of carefully selected, highly qualified insurance lawyers in Sydney, Melbourne and Brisbane.
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Understanding The Law... Employment Law

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Q. Following the introduction of Workchoices earlier this year although I work for a company having less than 100 employees do I still have any remedies left?
A. Yes. You are entitled to bring an action against your employer where there has either been a breach of an express or implied term of your contract of employment.
Q. Although the company for whom I am working is not meeting budget the area in which I work has exceeded budget but I am being put under increasing pressure to improve output?
A. All employers have managerial prerogative but where this is unreasonably exceeded and this has been raised with them, this can constitute a breach of your contract of employment. The particular circumstances which apply are extremely important in assessing the extent to which an employee has an available remedy.
Q. I approached my employer asking could I take leave without pay and they asked me to resign on the basis that when I returned all I had to do was reapply for my old position and it would be given back to me. I did this and on my return I put in my job application and other applicants were successful and I was refused. Can my employer do this?
A. No, as any employer who does this is contractually bound to fulfil the terms and conditions of the verbal contract entered into with their employee and if they fail to do so it is enforceable.
Q. My boss came to me and asked me to admit someone to our computer network without the property authorisation. I refused to comply and ever since I have been singled out by him and serially abused, ignored and made to feel unwelcome. Is there anything I can do?
A. Yes. It appears that you are being harassed and bullied and as a result you can seek redress from your employer.
Q. I have been working with the same company for in excess of 10 years and recently a new manager was appointed to my department. He has been riding everyone but particularly myself as it appears he wishes to make changes and bring in his own supporters. I am under stress and my health has deteriorated as a result. What should I do?
A. If you are under-performing then you should address the performance issues as quickly as possible otherwise the manager may terminate your services for any of a number of reasons including poor performance or operational considerations. If it be that you are being ridden and performance-managed in an endeavour to either get you to resign or be terminated then there are a range of things you can do. They include everything from unfair dismissal to suing for breach of contract, including breach of implied terms, which are extremely important in this context. Bullying and harassment should not be forgotten and if there is any hint of some form of actionable discrimination then this should be pursued also.
Q. I was recently fired for serious and wilful misconduct because my employer thought I had taken stock without paying or accounting for it. What should I do?
A. If you have been summarily dismissed and your employer has refused to allow you to explain the situation either thoroughly or at all then you are entitled to take action against him/her either for unfair dismissal if available or breach of contract.
Q. Recently I applied for a job and after the second interview was told by the recruitment agency that I had it. Subsequently I received a telephone call stating that they needed to carry out a criminal record check and I advised them of a minor transgression which had been dealt with by the court not leading to conviction. After this things got out of control and the agency told me that my application was unacceptable to their client and I should look elsewhere for employment. What should I do in the circumstances?
A. Obviously the agency offered you a job which you accepted and they badly handled the matter when explaining this to their client such that the problem is theirs, not yours. In these circumstances you are entitled to take action but the question becomes whether this will prove to be cost effective and will the amount to be obtained either as compensation or damages be sufficient in the circumstances.
Q. I am currently working for a very intense person who is overbearing and difficult who constantly threatens and swears at everyone yelling at them and standing over them unfairly pushing them to do as much work as possible. What should I do in the circumstances?
A. Given the type of work environment it is obvious you have a right to proceed against your employer for bullying and harassment. Not only are you able to do this under the general law but if it is having an impact on you there may be issues associated with the Occupational Health and Safety Act as well.
Q. I work for a government department and believe they are trying to get rid of me saying that my size interferes with my ability to carry out my work. I feel uncomfortable, as I believe I am being set up and the union is also involved. What can I do in these circumstances?
A. As you know with all government departments there are fixed procedures which need to be followed and if they are not issues such as the lack of procedural fairness will arise. In all of these cases it is important to find out what your employer is planning and should they invite you to attend a meeting to discuss your future then make a request of them that you be allowed to bring a support person with you, preferably your solicitor. Normally this would be agreed to and it is a far better way to proceed as your employer will have at least two people in the room when you are interviewed. Government departments normally follow a very lengthy process before an employee’s services are terminated.
Q. I was formerly employed by a company which has gone into liquidation owing me approximately $12,000 in unpaid wages. Is there anything I can do about this?
A. The best thing you can do would be to approach GEERS and see whether you are entitled to some form of compensation from them. Of course they will require proof of your entitlements and the best way to do this is to furnish them with whatever pay slips you currently hold. If you have lost or destroyed these documents then you will need to approach GEERS as to what other forms of proof they will accept to validate your entitlements.
Q. Since the Federal Government introduced Workchoices I am really confused as to whether there are remedies apart from the Workchoices legislation?
A. Most people are aware that provided you are working for a constitutional corporation the landscape for unfair dismissal claims has changed markedly. If you work for a company which has less than 100 employees then unfair dismissal is no longer an option for you whereas where you are working for a company with more than 100 employees then you are entitled to bring an action for unfair dismissal or unlawful termination provided you are a full time employee. In addition claims which can be made include breach of contract, breach of the Trade Practices Act, misrepresentation and anti-discrimination.
Q. I am having a number of issues with my boss at work due to his behaviour as he frequently swears, writes threatening emails, bullies, sets unreasonable deadlines and is trying to performance-manage me out of the operation. What can I do?
A. Obviously if you have been with your employer for some years and provided your earlier performance is in contra-distinction to what he is now saying then you would have a number of legal remedies available to you. It is essential in cases like this to make sure that you do everything possible to acquit at work to avoid criticism. Remember you can retain a solicitor to intercede with your employer and if this does not work then pursue your legal remedies.
Q. I was hired by an accountancy firm and terminated without notice without any reason given for my dismissal. Do I have any right of recourse?
A. Yes. Generally speaking the courts take an extremely poor view of someone being terminated without just cause and where no reason has been supplied. Obviously you need to see a lawyer to make sure your position is fully protected.
Q. This year I went to an office function and become a little untidy. Whilst I was taking photographs a girl lent over in front of me and I took a shot of her cleavage. After sobering up I suddenly realised there could be issues and I discovered that one of the persons to whom I had sent all the photographs including the one of the girl, had circulated this to everybody in the office. What should I do?
A. The first thing is to go and apologise to the girl and make sure there is no ill will between you. Next you should explain to your employer what your circumstances are and apologise to them for any inconvenience or problems that might result. Provided this works there should be no complaints of sexual harassment and the matter should die a natural death. If the matter escalates then you may be in trouble for serious and wilful misconduct and your services terminated.
Q. Recently I was retrenched and given one month’s pay in lieu of notice together with my current month’s salary. Unfortunately I was not paid for my annual leave or my current bonus which it vested and my unvested bonus which is now due and payable. What should I do?
A. You are entitled to take action to recover these outstanding monies, the only issue may be in regard to the current bonus which was not vested at the time your services were terminated.
Q. Approximately two years ago I joined a car dealership which is rather old-fashioned in the manner in which it transacts business between the finance and sales departments. An insurance provider suggested to the management that I was not doing my job properly and as a result I have been reprimanded being held responsible for the poor performance of my area which is ludicrous as the sales for this year in my area are the same as last year when the market was booming. What should I do?
A. As both departments have not been integrated it is hard to see how you could be blamed for this situation, particularly as the downturn was in new car sales and not insurance products which are performing in line with the previous year. It seems that your department must be more effective this year than last as you must be converting more deals this year to maintain last year’s figures. Irrespective you need someone to intercede on your behalf with your employer to cogently put your point of view and if they are unaccepting of this and your services terminated then you should proceed against them for unfair dismissal and look at what reasonable prospects you may have of proceeding against the insurer for defamation.
Q. I have been with the company as a permanent-casual in excess of 10 years and am wondering whether or not I can make an application to become a permanent employee?
A. Yes. Any employed person who has been working continuously and systematically for an employer for either 6 or 12 months is a deemed permanent employee and all that has to be done is to make application to the employer to convert your status. If anything negative transpires approach a lawyer to enforce your rights.About the AuthorNominate a Lawyer is a network of carefully selected, highly qualified employment lawyers in Sydney, Melbourne and Brisbane.
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Understanding The Law...Criminal Law

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Q. Am I likely to get off a speeding charge if I can prove that my car’s speedo was in error?
A. No, but this would be taken into account when you are sentenced.
Q. Unfortunately I do not have a good driving record; I am separated from my wife who does not have a driver’s licence which means that I have to take my son to and from child care. Will this be taken into account although I have recently committed another driving offence?
A. Yes. The court takes a very poor view of repeated transgressions by drivers particularly where they are young and have a bad driving history. Courts often take into account these circumstances but more particularly where the offender’s continuing employment is likely to be affected.
Q. I have just ended a short term relationship with my former girlfriend who is threatening that if I do not return to her she will report me to the police saying that I sexually assaulted her?
A. This situation is not uncommon and involves both males and females alike. Irrespective of gender if you are blackmailed by someone to return to a relationship which you have terminated then do not hesitate to approach your lawyer and have them contact the police to ensure that you are adequately protected.
Q. I am 40 years old and involved in sales and I have recently been charged for the second time with high range PCA. What should I do?
A. The courts do not like drink-driving offences and more so where they are high range PCA. Where this type of offence has been repeated within a period of five years then the penalties are severe involving disqualification, fine and/or imprisonment. In all such cases proper legal advice should be obtained in order to mitigate the sentence and questions of financial hardship associated with losing your licence need to be ventilated with the court to obtain consideration.
Q. Recently I was picked up for exceeding the speed limit by more than 30 kph and I am concerned that I am may lose my driver’s licence when this matter comes before the court. I need to know what to do?
A. In NSW where you are exceeding the speed limit by over 30 kph it is an serious offence as it constitute dangerous driving. Aggravated dangerous driving occurs where a person exceeds the speed limit by more than 45kph which involves automatic suspension of licence and in some cases a term of imprisonment.
Q. Do courts take into account a prior drink driving record and does it have any appreciable effect on the sentence handed down?
A. In NSW a prior drink driving offence within a period of five years has an appreciable effect on the sentence imposed by any court. For a low range PCA for a first offender there is an automatic minimum disqualification period of three months apart from the question of fines or imprisonment. In the case of a second offence committed within a five year period there is an automatic minimum disqualification period of six months apart from the questions of fine and imprisonment once again. The lesson is, if you have been caught once for drink driving don’t get caught again irrespective of whether the courts are only meant to take a prior offence into account within a five year period as they are entitled to consider the whole of your driving record when imposing sentence.
Q. I was recently at a sporting event and my conduct was a bit untidy. As a result I said some derogatory things about one of the teams playing and unfortunately I was sitting amongst a lot of their supporters. Apparently they called the police. Whilst I was standing up cheering I felt an arm on my shoulder which I attempted to shrug off. The next thing I knew I was being wrestled to the ground by police and taken to a nearby police station where I was subsequently charged. The charges included - resisting arrest and striking a policeman whilst on duty. Is this serious?
A. Yes. Unfortunately resisting arrest and striking a police office in the performance of his duties carries an extended gaol term. In your case the matter needs to be properly explained to the court to mitigate your sentence.
Q. I am a young person who has had a AVO taken out against me as it is alleged that I have had a sexual relationship with a minor. What do I do in the circumstances?
A. You will need to obtain the services of a competent criminal lawyer to aggressively defend you with respect to the AVO. Under no circumstances whatsoever should you speak to the police given the gravity of the allegations against you and rely upon your right to silence. If the police call on you then you should refer them to your lawyer and if arrested the police should give you the opportunity to contact them prior to being interviewed. In all these cases it is absolutely imperative that you be properly represented and say nothing to anybody in any context whatsoever about this matter. The success or otherwise of these types of cases often depend upon whether you have made admissions including what other evidence you have furnished to the police which provides them with an opportunity to obtain further information against you.
Q. Recently I was charged with sexual assault by my ex-wife who suffers from mental illness. She has a history of bizarre behavioural problems but despite this the police would not listen. What should I do?
A. Any form of sexual assault is a serious matter which can lead to a long term of imprisonment. Under no circumstances should you make any admissions to the police thereby exercising your right to silence. Given the seriousness of the allegation you should retain a competent criminal lawyer who can assist you to deal with this matter. Fortunately you will be put to unnecessary expense and unless the police have acted maliciously the costs to defend yourself are not recoverable.
Q. I lent some money to a friend who was in financial trouble on strict terms and conditions about repayment. Subsequently he defaulted and I continued to discuss the matter with him until he indicated he wasn’t going to pay me back. During the course of discussions it was agreed I would visit him at his home to ascertain what could be done to remedy the situation. I attended his home and after much discussion a fight broke out which led to him being hospitalised. What should I do?
A. Given the serious nature of what happened you should immediately retain a competent criminal lawyer to assist you. Serious assault cases can lead to extended periods of imprisonment if there are no mitigating circumstances.About the AuthorNominate a Lawyer is a network of carefully selected, highly qualified criminal lawyers in Sydney, Melbourne and Brisbane.
Published At: www.Isnare.comPermanent Link: http://www.isnare.com/?aid=133972&ca=Legal