NSW Is Trespassing an Offence Under Criminal Law?

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Kbam

Well-Known Member
2 September 2018
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So, "yes" then?
I ask because if you have been injured at work
(including psychiatric injury related to the death of a trespasser)
then you should be talking to the union about a Workers Comp claim.
If you are not union, then you're on your own.

Aren’t all workers allowed workcover- whether union or not?
 

Tim W

Lawyer
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28 April 2014
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Don't assume stuff.
And don't believe everything you hear in the tea room
(or that you read on the internet!)

Even if you are a former driver,
perhaps you left because of the effects of an injury or illness
you acquired while on the job.
Make contact with the RTBU, and go from there.
 

Kbam

Well-Known Member
2 September 2018
16
0
71
Nor should you assume that a driver would voluntarily leave as a result of their injuries...

As in the case of Flavel vs Railpro drivers have been known to have their employment terminated when a mental injury prevents them from driving....oh&s law does not allow a driver to operate a train in this circumstance therefore a driver can not legally be sacked for an inability to perform the inherent requirements of their role (see Disability and Discrimination Act)...a dismissed driver in this circumstance is able to pursue an adverse action case as per the FW Act Section 350 in relation to the dismissal.

It is not an assumption but fact that a driver resigns their union membership when no longer employed by the company. The union is only able to assist in the events leading up to termination and possibly pursuing an unfair dismissal application to the FWC - that’s the extent of their role.

It is an employer not a union that’s required to obtain a workcover insurance policy - it makes no difference wether the employee is a member of the union or not as to wether they are able to claim on said policy or pursue compensation under statutory or common law within the workcover scheme.

One of the requirements to bring about an action for common law under the worker compensation scheme is that negligence on behalf of the employer must be demonstrated.

As in this case it was not the negligent action of the employer that caused said impairment the driver would not be able to peruse such an action.

In light of this under the relevant state Civil Liabilities Act claims for damages in relation to mental injury are permissible where there is no right to claim under a compensation scheme.

With all that said and with the assumption that legislation is not considered tea room gossip I will ask again...

In a situation where the negligent actions of a trespasser caused a mental injury to a person and the trespasser died - what happens, where does the liability lie when the negligent party is dead, how would this efffect a case?


PS. The driver acted under advice that reinstatement would not be possible upon application to the FWC and the 21 day period to bring such an action expired. If you were thinking of an unfair dismissal case would prevent this scenario from existing..
 

Kbam

Well-Known Member
2 September 2018
16
0
71
I’m going to get those legal muscles exercising even further with another question relating to a potential scenario....


Under the workers compensation scheme the most common way to pursue a claim under common law requires that a 30% degree of permanent psychological impairment be established in order to proceed and it needs to be attributed to the workplace injury.


Wether you’d like to admit this or with regards to psychological impairment in the majority of cases I’ve seen there is considerable efforts in establishing wether or not injuries arose from the accident or were derived from a pre existing mental condition.


A pre existing mental condition in this scenario would prove that the employer was negligent in allowing the driver to operate the train.


A driver must be assessed prior to commencing employment, after periods of absence and on a regular basis.


A Safety Critical Category 1 Health Assessment must be undertaken by an authorised Railway Doctor.


This would prevent a driver who has a pre existing mental condition from driving a train in accordance with OH&S law.


You would think it would cancel out any attempt to argue that the driver had a pre existing mental condition .


In the event it didn’t & a driver was prevented from making a claim for common law damages under the workers compensation scheme due to an insurer being able to establish a pre existing mental condition ...which subsequently established that employer negligence caused the injury...


Does this then free the driver to pursue a common law claim against the employer outside the workcover scheme?


There’s no court ruling here ...


Would the acceptance of liability accepted by the workcover insurer mean they would be liable to pay for actions that resulted in an award for loss or damages in another jurisdiction or would that fall back on the party found negligent?


It does not seem fair that the workers compensation scheme require that negligence on behalf of the employer be established when by doing so it prevents the right to bring the action.


You also need to bear in mind that train driving is a very specific role. In each state there are less than 1000 people worldwide who are employed to do this job.


The average salary (according to what the ATO reports) in 2014 for a metropolitan train driver was $107,000.


Upon termination a driver has no legal right of return to employment.


The enormous cost of training a qualified driver also prevents a return to former or similar Employment.


When I say enormous cost - I mean that training and assessment in order to obtain a required qualification can only be done by a person who holds a driving qualification - it is not a teachers salary that is paid to those who oversee the driver training program...it is a driver salary plus the additional teaching accreditation that’s paid.


That and the fact that trainees earn a fairly decent salary whist training (around the $65k - $75k mark) should give you a rough indication on the cost of training a driver on a full time basis that includes weekends and public holidays over an 18months period.


Most if not all drivers fall well outside the 40% drop in potential future earnings. When their employment ends as it has been a life long career and the don’t have any other work experience.


A driver injured for example at age 35 entitled to claim loss of future earnings in 2014 is looking at a compensation payment in excess of 3 million dollars.


That amount of money could certainly explain 2 things ...why drivers are rarely sacked after mental injury and the demonstrated lack of knowledge in this particular area of law.

Betcha glad you started answering this thread ...lol
 

Tim W

Lawyer
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28 April 2014
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Nor should you assume that a driver would voluntarily leave as a result of their injuries...
No such assumption.
Many, many, drivers leave involuntarily, carrying injuries and illnesses that are invisible.
And/or that are greatly mismanaged by their employer.
I know several personally.

The RTBU helps numerous drivers with making workers compensation claims.
Your best way of finding out if they can help you is to ask them first hand.
 

Kbam

Well-Known Member
2 September 2018
16
0
71
Ahhh I find what your are saying difficult to believe...the RTBU are the best. You cannot fault these blokes when it comes to supporting drivers...you know that the RTBU are full-time working drivers themselves...the union roster which allowed them time to attended to union business was abolished almost ten years ago. These guys work full time and manage union affairs at the same time the are stretched beyond thin working their asses of in their own time dealing with a myriad of management v driver issues.

The railways culture is one of don’t even say hello to a manager if he walks by unles there’s a rep at your side...I’m sure they would if they could but helping driver lodge workers Comp claims is not something the boys at the RTBU have time or the resources to do. Ten years ago a driver had never been sacked following a fatal accident...they sacked a couple of drivers to set an example to other drivers and scare them back to work early or else!

A year after the sacking of 2-3 drivers the rail operator set about making massive changes, implemented all manner of policy were there was none in relation to driver mental health, partnering up with numerous mental health organisations there have been no sackings since...and the new policy and programs that were put in place are credited with the dramatic drop in LTDTI hours - which by the way was a clause within the franchise agreement the rail operator holds with the state government - LTDTI had to be reduced by 50%...target was met...bazillion dollar cost was cut - rail operator and state gov were pleased...

Tell you what if you can cite 3 cases involving a Vic driver and workers comp in the last 10 years I’ll stop badgering you...oh and just to repeat , knowing the head and secretary of the loco division personally and all the other union boys - RTBU arent working on the compensation cases of non members ...membership ends with employment - the best than can do is point you toward their affiliated law firm - usually a large McDonald’s style firm like M.B or someone like that...they are far too busy and under resourced - it’s as simple as that...
 

Kbam

Well-Known Member
2 September 2018
16
0
71
An idea for the next post:

You stick to talking about your job and what you know about - law ...and if I have any questions about being employed as a train driver - I will ask a driver....deal?
 

Tim W

Lawyer
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28 April 2014
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I'll make one last suggestion then.
You need the kind of help you get from a doctor, not a lawyer.