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

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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.

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

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