Law firm found negligent in advising injured worker to settle claim – Vic Supreme Court

Galbally & O'Brya-lawsuit

In a recent legal case, a well known law firm (Galbally & O Bryan) that advised an injured nurse against suing her employer for loss of earnings was found negligent in advising her not to settle her claim.

The Victorian Supreme Court (Court of Appeal)  found the law firm, Galbally & O’Bryan, was negligent in giving its advice to the injured nurse, which caused the injured worker loss, and ordered to pay her $372,000 in damages.

Background of the workcover legal case

In June 2000, the injured worker (a nurse) was violently kicked in the neck by a patient with dementia when she knelt to put on his shoes. The patient was known by staff to be “a bit punchy” . The nurse consequently suffered neck fractures.

The injured nurse, left with permanent injuries,  sued her (negligent) employer for damages for pain and suffering and loss of earning capacity, but her lawyers — Galbally & O’Bryan — advised her to drop her claim for loss of earnings (aka economic loss), and to only settle the pain and suffering claim for $100,000.

The injured nurse — thankfully— felt that it wasn’t right and subsequently sued the Galbally & O’Bryan for “negligently advising her to abandon a claim for damages” and, also, for settling her pain and suffering claim for “less than its true value”.

Supreme Court Proceedings

In January 2012, the Supreme Court ruled the  injured nurse was partially allowed to proceed with her claim.

The Supreme Court heard the injured nurse had not worked with the demented patient before, and was advised by colleagues “to duck” when she had asked what strategy to adopt when dealing with that patient.

The court also heard the employer routinely provided nurses with a patient care plan, but found this was an inadequate way to warn nurses about violent patients and give directions to avoid injury.

The injured nurse also told the Court she had not been told she needed to read the patient care plan, which included information about the patient’s inclination to hit and kick nursing staff, and information on how to work with (that patient), such as using a “gentle touch and eye contact”.

The Court found the injured nurse would have proved that the employer was negligent had she pursued the pain and suffering claim, as the employer system of work for ensuring the safety of nurses was simply “impractical and inadequate”.

However, the Court also states that the injured nurse would not have pursued her loss of earnings claim even if she had received appropriate advice from a reasonable and prudent lawyer.

The court ordered Galbally & O’Bryan to pay her $56,750 in damages.

The injured worker appealed this decision, arguing that the damages were inappropriate.

The appeal

At the Supreme Court (Court of Appeal) Justices Pamela Tate, David Harper and Emilios Kyrou agreed with the injured nurse, and awarded her $285,335 for past and future economic loss and other damages, and $87,384 in interest.

The Justices basically agreed that there was a “substantial likelihood” that the injured worker would have established her claim against the employer, and said there was “no identifiable deficiency in her case upon which a reduction of those prospects of success could be based or that rendered her claim doubtful”.

You can read the full text of the legal case here:  Rosa v Galbally & O’Bryan (No 2) [2013] VSCA 154 (20 June 2013)

 

As was recently discussed in our comment section, “fmj” stated “Dont use the Union allocated lawyer… Union preferred lawyers are like bulkbilling medical centres…”. We couldn’t agree more —The worst lawyers are the assembly-line-factory-type lawyers or law firms (aka sharks or ambulance chasers). They are strictly in the business for the quick money… and often don’t even remember your name. Some of us, behind aworkcovervictimsdiary have had terrible experiences with Union allocated lawyers, including Ryan Carlisle Thomas (Nurse Union allocated), whose favourite line is “take it (virtually zilch) and run”. Perhaps it is indeed more about the actual person (lawyer) you get allocated, however we seriously doubt it. The moral of the story is, do your ow research—learn about your entitlements, read relevant legal cases (caselaw), as in similar case to your own situation and get an idea of what you may expect. Stand your ground, and if you believe your lawyer is not acting in your best interest, complain to the managing director (for starters) and… consider taking the matter further, as this poor nurse has successfully done.

It is utterly disgraceful that injured workers are ripped off by the very people they are supposed to trust.

 

[Post dictated by workcovervictim and manually transcribed on behalf of WCV]

 



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One Response to “Law firm found negligent in advising injured worker to settle claim – Vic Supreme Court”

  1. Thanks for posting this article. I am due to meet with this law firm again for the second time before signing any contracts, I was unsure of what to do. I had also met with Shine recently and felt much more confident with the person I met with.

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