Receiving Compensation for an Injury According to Uniform Evidence Law - Case Study Example

Legal Research Memorandum Institution Name Legal Research Memorandum To Lawyer Steve From Law Student Date 2011-08-30 File No. 201109-1 Re: Compensation payment on injury of victim to stop Executive Summary Chris Marcinowski who has been receiving compensation for an injury suffered dated 4 September 2009, seems to have recovered. Mike thinks the claim may no longer be genuine and wants Chris off the books and figures he can go back to work. Task is to verify Mikes’ report about Chris’ present health status with regard to the law. Again, will the report offer enough evidence to enforce the move to stop Mr. Marcinowski’s payments with regard to Judgment by the court? There were no investigations done after the accident to verify the innocence of the victim and confirming that it was not his doing, the injury confirmed to be not necessary. Mike has produced four witnesses but he wants to mostly use Jill Storer who alleges that Chris had been was careless, as he should have sought for assistance as per the magnitude of task he was undertaking. This would have avoided the accident. As such, the implication is that it was his fault. Again, Jack Henderson confirms of the careless as he notes that the height of the ladder was too high to go alone, however, the accident was unavoidable. Although we have evidence that Marcinowski is pretending to be sick and does welding jobs from the house it difficult to prove. The photos taken on December 2010 when Chris was paragliding at the beach in Bali, we need more evidence as to the experience in Marcinowski. The contentious issues only are reinvestigated. Introduction Chris Marcinowski who has been receiving compensation for an injury suffered dated 4 September 2009, seems to have recovered. According to the report presented from Mike, he is shamming injury in order continue receiving compensation. Mike thinks the claim may no longer be genuine and wants Chris off the books and figures he can go back to work. There is still quite a lot of money left in the insurance policy to settle with regard to the compensation. We simply have to prove that he is no longer injured. Issue Task is to verify Mikes’ report about Chris’ present health status with regard to the law. Again, will the report offer enough evidence to enforce the move to stop Mr Marcinowski’s payments with regard to Judgment by the court? Mike is committed to ensure that his case and considerations are met, even if it means going up to the arbitrator. Discussion The law is clear that Shamming sickness as it amounts to ingenuity of contract rendering the contract unenforceable when proven. The reason the company considered Chris Marcinowski’s compensation was that he was seriously injured and enough witnesses confirmed the fall. There were no investigations done after the accident to verify the innocence of the victim and confirming that it was not his doing, the injury confirmed to be not necessary. Two years down the line, Mike produces an extensive report that provides enough proof that Mr. Marcinowski is well and is being opportunistic to receive the payments. As per the evidence Act (1995), we shall require a statement on the evidence that clearly contains the source of the information and the basis of the allegations set against the defendant. Mike thinks that we will settle this before any hearing; in particular, he thinks that if he offers about half what the injury may be worth in negotiations, and makes it clear that we will be turning the allegations about the theft over to the police if Marcinowski does not accept and walk away. However, based on the knowledge and evidence constitutes the knowledge and belief of the individual who offers it, or on material one has (Evidence Act 1995 - Sect 172). Mike has produced four witnesses but he wants to mostly use Jill Storer who alleges that Chris had been was careless, as he should have sought for assistance as per the magnitude of task he was undertaking. This would have avoided the accident. As such, the implication is that it was his fault. Again, Jack Henderson confirms of the careless as he notes that the height of the ladder was too high to go alone, however, the accident was unavoidable. This means that the accident was unavoidable solely from that height of the ladder. It was Chris’ responsibility to seek help, which he ignored. Bill Benson seems to support the safety measures by the company from history noting that this is a rare occasion and definitely a unique one. The medicals have given contradictory information. It is worthwhile noting that Chris had a back injury even before the accident as per the report form the insurer as at August 2009. The recommendation from the doctor’s recommendation was a six months recovery period, which was ignored by Mr. Marcinowski by doing tasks, might increase the chances of falling and worsening the injury. As such, the accident one month later implies carelessness to his health. However, the severe damage to Mr. Marcinowski’s back injury is critical according to series of monthly reports from Chris’s GP, Mr. James Flint, Chiropractor, (commissioned by Chris’s solicitor), and Dr Tony Marsden, Orthopedic Surgeon. The reports support that Chris is unfit to work from any time soon because the condition is unlikely to resolve because the injury is fragile and may cause a permanent failure of the lower spine. This will form the defense for Chris. We therefore will use the evidence of the photos and evidence given by the Everall Investigation Service. However, the authentication of the evidence is in question since we are not in a position to confirm this. For instance, we can have the two men, as our witnesses, who engaged with Chris on a conversation about his intention to start a business. This may be difficult because they are Chris’ Friend. The Evidence Act (1906 Sect 6) stipulates that such witness have to be interested should be included in the proceedings on the standing that they have a material evidence. Their matters in question will have substantial grounds of defense. On the other hand, the doctors’ report in support of Chris ability to work again is concrete enough. As such, because at this time we are relying on Mikes report we shall argue from Dr Kelly Anderson (Orthopedic Surgeon), Mr. Ian Goodwin (Physiotherapist) and Dr Namibiar reports. They report of absence of any underlying back problem. However if present, it is mild inflammation, which does not preclude his return to work if proper care is taken while undertaking his duties. Although we have evidence that Marcinowski is pretending to be sick and does welding jobs from the house it difficult to prove. The photos taken on December 2010 when Chris was paragliding at the beach in Bali, we need more evidence as to the experience in Marcinowski. The kind of activity need to defend the case on grounds that Chris did something that he should be unable to do. Again, an audit of his accounts will be important to know how much money he has to support his holidaying. On June 2010 the photos taken need do not have the right footage, in the local gym, to indicate progress in his health and ability to work once more. In this regard, we shall have to use the newspaper clipping with Chris home phone number to prove that he undertakes welding jobs at home. He does it in hiding, thus confirmation that he is shamming to continue receiving compensation. The law is clear on the type of this evidence. As per the Evidence Act 1995 (sec 161), electronic communication through any form of documentation is valid in any case and will therefore be considered. As such, the phone conversations records should be presented as stipulated in the Evidence Act (1995, Sect 161) with the original conversation as indicated in Section 162 of the Evidence Act. Again, on presentation of enough evidence to raise suspicion, the communication received should go in line with the destination to which it indicates as per the document date set. Again The case should have concrete evidence that Chris wants to set up a business immediately after all payments are given to him. However, the amount is still too much and may take some time, which leaves a number of questions on this argument. In fact the absence of a clear connection between setting up his business, working from home and advertising seems to lack the connection. This is because one cannot hide and advertise again, but authentication of this evidence shall be subject to Evidence Act 1995 - Sect 153. Conclusion The law is very clear as per the Evidence Amendment Act 2008 (Cth) to favor a case with uniform evidence. This means the realization of an effective case is that with no contradiction in defense. However, the fact that is human health, chances of contradictions of may arise. Detail explanation of these will be worthwhile (Uniform Evidence Law (ALRC Report 102). Recommendation and Further Inquiries Because of this case assessment, Mike should take the following steps to have the case detailed and fully investigated to be complete. The whole investigation should not be undertaken afresh but rather the contentious issues only be reinvestigated. On the other hand, the health status of Mr. Chris should be updated by a diagnosis with the company doctor and subsequent reports updated to the case files. The other way will be to confirm the footage at the old gym if Chris is healed. References Commonwealth Consolidated Acts, nd. Evidence Act 1995. Retrieved on 14th September 2011, from Western Australian Consolidated Acts, nd. Evidence Act 1906. Retrieved on 14th September 2011, from http://www.austlii.edu.au/au/legis/wa/consol_act/ea190680/ Commonwealth Consolidated Acts, nd. Evidence Act 1995 - Sect 153. Retrieved on 14th September 2011, from Commonwealth Consolidated Acts, nd. Evidence Act 1995 - Sect 52. Retrieved on 14th September 2011, from Commonwealth Consolidated Acts, nd. Evidence Act 1995 - Sect 161. Retrieved on 14th September 2011, from Australian Government (2011). Uniform Evidence Law. Retrieved on 14th September 2011 Read More