Jump to content

What do you think is compensable?
Have you or would you sue? *violence mentioned*


  • Please log in to reply
10 replies to this topic

#1 PubertyBlues

Posted 12 January 2013 - 10:00 AM

A general WDYT and also with a specific case in mind.

Appreciating that generally an injury to person needs to be proven, what do you think would be a compensable injury - in the case of the other thread about the M movie for example? At what point in that scenario would you expect compensation? If the kids watched the whole movie? If there was more violence?

The other thread got me thinking about a friend of ours - he was pretty viciously assaulted late in 2012 on his way home from a function - it wasn't a works thing and it occurred in a relatively upmarket karaoke bar which is open till very late at night and serves alcohol. There was no provocation and the entire thing was in a common area. No staff came to assist even after he was knocked unconscious and his head was being literally stamped on for about 4 to 5 minutes by a number of patrons who appeared to be part of an ethnic gang.

5 days in hospital, facial reconstructive surgery (between 20 and 30 individual fractures across his face including breaks in both cheekbones, one eye socket, his nose and his jaw) and 6 weeks off work (using annual and sick leave). He and his family werent able to travel interstate as planned for Christmas. The very real possibility of at least some future psychological trauma - certainly he won't be the same carefree person he was before the attack.

Should he sue the venue for a lack of duty of care? None of the attackers have been caught as yet. If he does, what do you think would be an appropriate amount to compensate that sort of injury?  

Medical fees, travel etc I definitely think so - but to what degree should he be able to ask for and receive compensation for things like missing Christmas, or that he wasn't able to have a holiday as planned with his kids?

I don't generally believe in compensation for minor things, and find it hard to imagine being able to put a figure on the pain and suffering part of it...

Has anyone been successful in suing for compensation yet included pain and suffering?

Just curious!


#2 katpaws

Posted 12 January 2013 - 10:18 AM

I brought up a case of discrimination against an "entity" for which i was "successful" in. While i guess what i got was a fair amount, it did not cover the pain and suffering i had experienced under the "entity". While i admit i was not physically hurt (ie hit), the psychological damage was quite bad and i almost suffered a miscarriage. Incidents incurred included being prevented from leaving an office by physical means and being subjected to daily harrassment for almost two years. The affects of this continue years after. The "entity" that did this was never punished and never apologised.

I have learnt that total justice is never accomplished and that people can never be truly compensated for what they have been through ie violence acts, abuse, discrimination and oppression.

In a fair world, people would receive the support and medical assistance they need to recover from incidents.

#3 PubertyBlues

Posted 12 January 2013 - 10:29 AM

That sounds awful katpaws! Do you think it was the inability to put a figure on the effects?


#4 *cough*

Posted 12 January 2013 - 10:38 AM

In the case of the incident in the OP you have to not just show that there was a duty of care from the bar to the patron but also that there was a breach of that duty of care.

It's not necessarily the bars fault - we'd need more facts to give a proper answer.

However, your friend should speak with a community legal centre closest to him because he would likely be eligible for criminal injuries compensation. The government would pay him out for the injury suffered without having to go to a civil trial with the risk of losing.

In relation to compensation generally you have to have suffered damages or loss - so injury, time off work, expenses etc.

You can sue for nervous shock and loss of expectation (like if a holiday you planned was crap say through a cruise company), not just cause they showed the wrong movie.

I think the OP in the other thread is getting hammered when really she meant she wanted more than a trite 'sorry'. Sorry is often bandied around but when people/companies put their money where their mouth is it seems to speak louder.

I am not one to seek compensation but I get sh*tty when restaurant meals are crap/ service is crap. I am paying for a service that they are not delivering and I am vocal about it.

#5 SeaPrincess

Posted 12 January 2013 - 10:40 AM

OP, was a police report made? In the situation you've described, the victim may be eligible for criminal injuries compensation. It's not the vast amounts of money that you see in American settlements, but also doesn't have to cost anything to apply.

#6 *cough*

Posted 12 January 2013 - 10:40 AM

QUOTE (katpaws @ 12/01/2013, 08:18 AM) <{POST_SNAPBACK}>
In a fair world, people would receive the support and medical assistance they need to recover from incidents.


This does happen in Australia. I am not saying its the best but you get all your medical under medicare and then can apply for compensation, part of that can be your ongoing mental care.

Our system is not too bad.


#7 ~TCBF~

Posted 12 January 2013 - 10:40 AM

He should talk to a lawyer about suing the venue. It does sound like that there was a breach of their duty of care. If the assailant(s) had been caught he could sue them too.

He doesn't get to choose an amount of compensation. These things are calculated by experts who are hired by the courts. The amount of money he may receive (if he is successful) is supposed to return him to the position he was in before the attack occurred - as best can be achieved with money anyway.

Pain and suffering is not claimable per se. The victim needs to prove actual mental harm i.e. a recognised psychiatric illness (PTSD etc). He is unlikely to receive any money simply for missing Christmas unless missing Christmas contributed to the eventual PTSD (or any other mental harm he may have).

The Civil Liability legislation in Australia (and in particular NSW, which is the legislation I'm familiar with) is written to protect defendants. In this case, the venue. Your friend needs to speak to a lawyer to see if he has a case. A lot of them do a 'No win, no fee' thing. The venue's insurance company will be the one fighting the suit. They usually have great lawyers and unlimited funds to fight these things. Your friend very likely does not. The best outcome would be a settlement from the insurance company.

Good luck!

#8 katpaws

Posted 12 January 2013 - 10:42 AM

The "entity" did not want to admit liability or pay compensation, PBlues. Also, the laws on discrimination are not that strong, so people in power can get away with quite a lot. I won on a technicality and was not able to bring up the potential miscarriage or the full extent of what had happened to me. I was not well at the time of case hearing and as i had free legal help (excellent help but limited by their available resources) it was easier to accept what was offered and get the entity out of my life.

QUOTE
I am not saying its the best but you get all your medical under medicare and then can apply for compensation, part of that can be your ongoing mental care.


The amount i received does not cover that at all. You can only claim certain things and never the total of the assistance you receive or need.

Edited by katpaws, 12 January 2013 - 10:49 AM.


#9 Coffeegirl

Posted 12 January 2013 - 11:31 AM

My only experience with compensation is through the NSW motor vehicle act.  

I was hit by a car in 2000.  Multiple fractures and 6 mths recovery before I could work.

Under the third party insurance, I received my medical, curent and futre loss of earnings, future medical paid for.  But pain and suffering was a different thing altogether.  To be able to be compensated for this, I had to prove 10% permanent disability to myself from the accident.   This was really hard to prove and even my girlfriend (who was hit at the same time) had trouble meeting this benchmark and she had a skull fracture.    The tests in place to reach this were very strict.  

Even then the compensation part of my payout was only about 20% of the total as there are caps on what they can pay you.



In the case of the movie, I think a free voucher would have been a nice gesture by the theatre, but not really required.

In the OP's instance, the victim would need to prove that the venue had done all they could to prevent the assault.  If it was just a random group of thugs who walked in and started throwing punches, then there is little the venue could have done.   If the thugs were highly intoxicated and the venue had continuted to serve them alcohol then they were in breech of the responsible service act..

katpaws, that sounds awful.  But I commend you for taking action.  Too many people just walk away and
Let the bullies get away with it.


Edited for Spelling

Edited by Coffeegirl, 12 January 2013 - 11:37 AM.


#10 Copacetic

Posted 12 January 2013 - 02:44 PM

QUOTE (*cough* @ 12/01/2013, 11:40 AM) <{POST_SNAPBACK}>
This does happen in Australia. I am not saying its the best but you get all your medical under medicare and then can apply for compensation, part of that can be your ongoing mental care.

Our system is not too bad.


Our system in Australia is pretty good, although if you do receive compensation, Medicare must be paid back, as well as any other benefits. You need to receive clearances from agencies like Medicare and centerlink  and in the instance of centerlink, won't be able to claim benefits for a set period depending on the amount of compensation they have received. In the situation described in the OP, yes that person would be due some compensation.

As for the movie goer, I came down on the side of compensation (eg, a free ticket) simply based on the fact that she paid what would have been extortionate prices for a service that did not deliver what they said they would, regardless of whether it was a human mistake or not.

#11 lamarque

Posted 12 January 2013 - 02:58 PM

PM'd you.  original.gif




1 user(s) are reading this topic

0 members, 1 guests, 0 anonymous users

 

Special Ticket Offer, Save $8!

The Essential Baby & Toddler Show is back this April! Save $8 off the door price for a limited time only!

Finding baby name inspiration in unusual places

Sometimes the greatest baby name ideas come from the most unexpected places, as these EB members show.

The case for inducing at 37 weeks

While we often think of pregnancy as a 40 week affair, experts agree that 37 weeks is actually “full term". So is there an argument for inducing all births at 37 weeks?

Does controlled crying really work?

Controlled-crying techniques may help some babies sleep through the night, but for many exhausted new parents, it's just a recipe for more tears all round.

How I taught my infant to use a toilet

As people become more aware of these benefits, I hope more parents will practice this method, so we can cut down on nappies and improve baby bonding.

'I thought it was impossible': Emily Symons pregnant at 45

Aussie actress Emily Symons has announced she is pregnant with her first baby.

Shallow water blackout kills fit, healthy dad

A little girl will grow up without her father after the fit and healthy 34-year-old passed away while doing something he had practised his whole life.

Afternoon naps may be bad for toddlers' sleep

You could be doing yourself a disservice by encouraging your toddler to have an afternoon nap, according to new research.

Best gifts for newborns, new mums and christenings

We've compiled a guide to some of the most popular presents for newborns and new mums, and for christenings and naming days.

Jaime King to be a mum again

Actress Jaime King is pregnant with her second child, giving 16-month-old James a sibling.

Nannies should receive government funding

The Abbott government should extend funding to nannies, and direct childcare payments to low and middle income families, a landmark study on childcare has found. 

Common skin irritations in newborns (and how to treat them)

As many as one in two newborn babies suffer from skin irritations in their first few weeks. So what are the most common rashes and irritations to look out for?

10 wall decals for the nursery or playroom

Wall decals are the answer to creating a beautiful nursery or children's space without lifting a paint brush, a spirit level or even a hammer.

Preschooler walks 2.4km home alone

Three-year-old Cain Trainor headed off home after his first day at a new preschool without telling anyone.

Video: Why mums get nothing done

In spite of being in an almost constant state of motion while looking after the kids and trying to keep things together at home, it can seem as though parents have managed to get nothing on the to-do list done by the end of the day.

The middle name game

The middle name is no longer an afterthought, and parents' inspiration comes from many places.

Have a baby or your money back - but there's a catch

A new IVF scheme offers couples the chance to fall pregnant and give birth - or get their money back. But there's more to it than you might think.

A rare glimpse inside the womb

A baby born still inside the amniotic sac gave US doctors a rare glimpse at life inside the womb.

Battered mum forced to write to her attacker ex in jail

Three years ago Jason Hughes viciously attacked his ex-partner. Now she has to write to him three times a year.

Woman pleads not guilty to ultrasound scam

A West Australian woman will fight allegations that she scammed expectant mums by selling them fake ultrasound pictures of babies.

Download now: Essential Kids Activity Finder app

Got bored kids? Quickly find the best activities for kids wherever you are in Australia with the Essential Kids app.

 
Advertisement
 
Advertisement
 
 
 

What's hot on EB

Brain damaged mum receives compensation

A Sydney mother who suffered brain damage when she was hit by a car while pushing her newborn baby in a pram has reached a confidential out-of-court settlement with the driver's insurance company.

Indigenous midwives break down the barriers

A culturally sensitive midwifery service has gained the trust and respect of Aboriginal women.

The Katering Show's next big delivery

Most mums-to-be plan to take things easy and perhaps have a little break from work as the birth of their baby draws near. Not Kate McCartney.

53 creative pregnancy announcements

Announcing that you're expecting can be a time to express your creativity, sense of humour and imagination. Check out how other parents and parents-to-be have broken the news to friends and family.

Why I have mixed feelings about Cindy Crawford's leaked photo

Last week an un-retouched photo of model Cindy Crawford surfaced, showing the 48-year-old mother-of -two posing in underwear.

How to create a Peppa Pig pancake

Thought your toddler could not love pancakes any more than they already do? How about if the breakfast treat came in the shape of every two-year-old's favourite cartoon character?

'It's a little life, not a little loss': pregnancy after miscarriage

I thought I was never going to be able to have a successful pregnancy. I decided that I wasn't going to form an emotional attachment with this baby.

Bonds Baby Search 2015: what you need to know

February 18 marks the start of one of the most prolific annual baby competitions in Australia: the Bonds Baby Search. And this year is going to be more special than ever.

Who will manage your Facebook account when you're gone?

This is not something that people like to talk about, but Facebook has announced that it will grant users more control over what happens to their pages after they die.

Struggling mum of four wins $188 million

Mother of four Marie Holmes was financially struggling after quitting her jobs at Walmart and McDonald's in order to care for her children.

Pregnant obese women a 'relatively new problem', coroner hears

A first-time mother whose daughter died hours after her frightening birth insists she was never told of the risks of being obese and pregnant.

'I'm angry as hell': the story behind mum's passionate vaccination plea

She has labelled parents who do not vaccinate their children "misinformed imbeciles" - and for that, she makes no apologies.

IKEA hacks for the nursery and kids' rooms

Are you one of those that know the whole IKEA catalogue by heart? Love their stuff but want to personalise it? Here's some inspiration to help you realise the potential of IKEA furniture and fittings.

8 different kinds of tantrums

I never thought I’d say this, but for a brief moment last week, Kim Kardashian and I had something in common: both our kids had public tantrums.

Polycystic ovary syndrome: symptoms, treatment and your fertility

Polycystic ovary syndrome (PCOS) is the most common female hormonal condition, affecting roughly one in 12 Australian women.

What's the best position for giving birth?

If doing it on your back is out, what's the best position for labour and birth?

Wife forgives snake catcher husband for car surprise

With Valentine's Day coming up, Nat Gilbert could be forgiven for thinking her husband might be planning a surprise for her.

Kids who meet milestones at their own pace

We usually only hear the success stories: tales of the two-year-old who’s talking, running and completely toilet trained. But other stories need to be told too.

Ruby shines as Bonds Baby

Sarah Kiss has a word of advice for proud mums and dads who are keen to enter their babies in this year's Bonds Baby Search Competition - just have fun.

Why dads should go to sleep school

If your family needs to go to sleep school, go with them. You are part of that family and you are part of the solution.

36 baby names inspired by food and drinks

A French court may have ruled out Nutella as a baby name, but that doesn't have to stop you from taking inspiration from the supermarket (or bottle shop). See what parents in the US have chosen for their delicious little ones.

Clever breastfeeding products

Check out this range of products designed to help make your breastfeeding journey more enjoyable, manageable and convenient.

 

Win a KitchenAid Mixer

Let's celebrate 300,000 fans on Facebook

To celebrate, and to thank our amazing fans, we?re giving away a KitchenAid Artisan Tilt-Head Stand Mixer.

 
Advertisement
 
 
Essential Baby and Essential Kids is the place to find parenting information and parenting support relating to conception, pregnancy, birth, babies, toddlers, kids, maternity, family budgeting, family travel, nutrition and wellbeing, family entertainment, kids entertainment, tips for the family home, child-friendly recipes and parenting. Try our pregnancy due date calculator to determine your due date, or our ovulation calculator to predict ovulation and your fertile period. Our pregnancy week by week guide shows your baby's stages of development. Access our very active mum's discussion groups in the Essential Baby forums or the Essential Kids forums to talk to mums about conception, pregnancy, birth, babies, toddlers, kids and parenting lifestyle. Essential Baby also offers a baby names database of more than 22,000 baby names, popular baby names, boys' names, girls' names and baby names advice in our baby names forum. Essential Kids features a range of free printable worksheets for kids from preschool years through to primary school years. For the latest baby clothes, maternity clothes, maternity accessories, toddler products, kids toys and kids clothing, breastfeeding and other parenting resources, check out Essential Baby and Essential Kids.