If you believe that you have been injured as a result of medical negligence or a dog attack contact Mantzoros & Partners on 08 8396 3143 to arrange a no obligation free first interview. Call now to ask about our No Win, No Fee arrangements.
A dog attack is a frightening experience which can lead to serious physical or psychiatric injury, or even death. Young children are particularly vulnerable to dog bites or attacks.
What if my dog has bitten or attacked someone?
If a dog attacks or bites a person or other animal, the owner can be prosecuted for an offence and fined. Higher penalties apply in cases involving restricted breeds of dog or dogs previously declared dangerous. You can face imprisonment of up to 10 years if the attack results in the death of a person. If the dog was with someone other than the owner at the time of the attack, both that person and the owner can be prosecuted. It is also a criminal offence to allow a dog to rush at or chase a person. A dog owner may be ordered by the Court to pay compensation to an injured person for injury caused by a dog bite or attack. A court or the local council may also order that a dog be put to sleep or declare a dog to be dangerous.
Is the owner of the dog always liable?
A dog owner will not always be liable for a dog attack or bite. An owner may not be held liable in the following circumstances:
- a dog is being teased, abused or assaulted by the person the dog then attacks;
- a person known to the dog is being attacked in front of it;
- the person injured by the dog is trespassing on the premises on which the dog is kept; or
- another animal comes onto the premises on which the dog is kept.
What do I do if I was attacked or bitten by a dog?
If you are injured by a dog and the authorities do not pursue a prosecution, you can sue the owner of the dog for damages as a result of their negligence in failing to properly control their dog. However, in order to do so, you must show that the owner of the dog was aware that their dog had a dangerous propensity. This means that, you must show that they were aware that their dog was prone towards dangerous behavior, for example proving that the dog had previously attacked someone else or another animal is good proof of a dangerous propensity. Alternatively, you may be able to seek compensation from victims of crime. However, the compensation received will be extremely limited.
Medical negligence claims are some of the most difficult to prosecute. This is because sometimes, even the best medical treatment cannot prevent illness or injury. Likewise, a bad experience with a doctor may not be the cause of an injury. However, if a health-care provider causes you an injury while in their care, you may be able to make a medical negligence claim. Medical negligence covers a wide range of issues. It can include:
- Surgical errors
- Medical misdiagnosis
- Prescription and medication errors
- Medical errors during childbirth
- Anaesthesia errors
Do you have a claim?
To obtain compensation, you must be able to prove three things.
- Your health-care provider was negligent. Negligence is a specific legal concept and not every failure or error made by a health-care provider will be negligent.
- The negligence led to your injury. You must then show that the negligent treatment caused or contributed to your injuries.
- Your injuries are related. You can only be compensated for injuries and losses that result from the negligent treatment.
What are surgical errors?
Surgery is a highly skilled area of medical practice and there are risks involved with every surgery. Sometimes complications can arise despite excellent medical skill and care being provided. However, sometimes it is unavoidable for things to go wrong. In the context of a medical negligence claim, a surgical error occurs when something goes wrong during, shortly following or as a result of surgery, which could reasonably have been avoided. Some examples of surgical errors are:
- operating on the wrong body part;
- carrying out surgery that is not indicated or necessary;
- leaving equipment such as a clamp or surgical sponge inside a patient;
- causing infection to occur at or near the surgical site;
- failure to complete a surgical procedure appropriately (such as failing to completely excise a malignant tumour where a complete excision was possible and indicated);
- causing unnecessary disfigurement or nerve damage at the surgical site;
- causing damage to another part of the body not involved in the surgery.
What is medical misdiagnosis?
Misdiagnosis occurs where a health care practitioner either fails to diagnose or erroneously diagnoses an illness or condition. Misdiagnosis can lead to incorrect treatment, delayed treatment or no treatment at all being provided.
What are prescription or medication errors?
Prescription or medication errors arise when incorrect medication or an incorrect dose of a medication is taken by a patient. This can occur either if the correct medication is prescribed or if incorrect treatment is prescribed. A medical negligence claim can arise as a result of a medication or prescription error. Errors with medication can also occur when the prescription is correct and correctly read, but the incorrect drug is dispensed or administered which can occur for many reasons. A medication or prescription error can not only cause a person to take medication that is not indicated, which may in itself cause injury or harm, but it can also result in the person’s underlying illness or condition not being adequately treated.
What are medical errors during child birth?
Childbirth is a time of significant medical risk. A mother and baby are vulnerable during childbirth and rely on the medical practitioners assisting them to keep them safe from harm. Many incidents of injury or death during childbirth occur because of unavoidable events. However, sometimes injury is caused by medical error. Some examples of medical errors during childbirth are:
- failure to perform a caesarean section when one is indicated;
- failure to effectively monitor foetal heart rate;
- failure to respond to foetal distress;
- using delivery aids inappropriately;
- causing damage to or failure to diagnose and repair damage to the mother’s uterus or bowel;
- failure to ensure removal of all of the placenta following birth.
What are anaesthesia errors?
Anaesthesia errors occur when a health care practitioner fails to properly administer an anaesthetic. Anaesthetics are used to put a patient to sleep or to cause a loss of sensation during surgery or medical treatment. Anaesthesia is a highly skilled area of medical practice and there are significant risks involved. Things can go wrong with devastating effects. Some examples of anaesthesia errors are:
- Anaesthetic being improperly injected into a nerve or the spinal cord;
- Failure to properly monitor a patient during surgery;
- Administering the incorrect drug;
- Incorrect dosage of anaesthetic being administered.
Is there a claim?
Notwithstanding all of the above, if you believe a doctor or health care provider has misdiagnosed you or made a surgical error or made a prescription error, it does not always amount to medical negligence. To do so, it must be shown that:
- the medical practitioner did not exercise the reasonable skill, care or expertise to be expected of a medical practitioner of his or her position; and
- the negligence caused more harm or injury than if it had not been made. Sometimes, an error and the resulting treatment, or lack of treatment, does not materially change the medical outcome for a patient. In such a case, compensation would not be payable.
A duty of care is a legal duty to take reasonable care not to cause harm to another person. In personal injury law, you can only sue for injury or damage if someone breached a duty of care they owed to you. A duty of care does not arise in all circumstances. It can only arise where it is reasonable to expect that a particular person or class of persons might be injured or harmed if you behave carelessly. This is called foreseeability. The following are some examples of situations where a duty of care usually arises:
- drivers owe this to other road users;
- doctors and other health care practitioners owe this to their patients;
- teachers owe this to their students;
- restaurants owe this to their customers;
- manufacturers owe this to those who use their products.
A duty of care is breached when:
- a person is injured because of the actions (or inaction) of another person; and
- it was reasonably foreseeable that such actions would result in a risk of injury to the injured person; and
- a reasonable person in the same position would not have acted in that way; and
- the risk of injury occurring was not an insignificant risk.
When a duty of care is owed, and it is breached resulting in injury or damage, the injured person can sue the person who breached the duty of care for damages which can include
- compensation for the pain and suffering;
- medical and out-of-pocket expenses; and
- economic loss resulting from the injury.
Total and Permanent Disability (TPD) coverage commonly provides financial benefits to those who are no longer able to work in their usual occupation or any other occupation they are reasonably suited to due to mental or physical disability or ill health.
If you’re injured or sick and can’t work for then there’s a chance that you have a claim. Most of us have insurance called Total Permanent Disability (TPD) built into our Superannuation and sometimes people have their own additional TPD insurance through financial advisors or other institutions.
TPD insurance can pay hundreds of thousands of dollars – and in some cases much more – if you have had to stop work as a result of an illness or injury. Other forms of superannuation insurance may include total and temporary disability (TTD) monthly payments. There are time limits for making a super claim, so contact us today.
Total and permanent disability claims (TPD)
You may be eligible for a TPD lump sum payment if you can show you’re not able to do your normal job or any other work related to your training and experience. That doesn’t mean you’re unfit for all work – just the work that fits your skills and experience.
Super funds have varying insurance for their members. Because of this, if you have TPD insurance, the criteria for making a claim can vary. However, you can generally claim a TPD payment if you’re not able to perform your usual job due to injury or illness and can’t return to any other work for which you are reasonably qualified by education training or experience. This means that much of the time you don’t have to be completely unfit for all work – just work that you are suited to due to your past experiences. If you can do some work but will require retraining then you may still be entitled to the payment.
Importantly, your disability does not have to be work related. For instance, you may still be entitled to claim TPD if you have a fall at home, a heart condition, disease or mental illness which prevents you from working.
Total and temporary disability claims (TTD)
If you’re not able to do your normal job for a while, whether it’s two months or two years, you may qualify for TTD monthly payments.
These payments are usually up to 75% of your normal income, and is payable for up to two years, or up to the age of 65. There is usually a waiting period of 30 to 90 days. The specifics of each person’s insurance varies with the policy which they have taken out.
TTD payments may be offset against any worker’s compensation, motor vehicle or Centrelink payments, and might stop if your employment is terminated or if you receive a TPD lump sum – but that’s not always the case.