How many of you can put your hand up 🖐 and say you’ve never used an emoji?  Never popped a smiley face 😀 in an email?  Never used a wink 😜 in a text message?  What about a thumbs up 👍in a social media post?

 

Emojis or emoticons are small digital icons used to express an idea or emotion in electronic communication.  They are becoming increasingly common in our interactions with others and our legal system is rapidly recognising their significance.  No longer seen as simply fun or silly pictures, emojis are being given a wider berth – as valid forms of communication that can have serious legal implications.

 

A French case held an individual’s gun emoji 🔫 sent in a text message to his girlfriend constituted a death threat.  The young man was sentenced to six months imprisonment.

 

In Israel, a combination of positive emojis 😀 👯 🍾 was taken to depict the acceptance of a contract to lease an apartment.

 

Closer to home, the Queensland Supreme Court accepted a deceased man’s draft text message as a valid will.  The unsent text bequeathed his house and superannuation to his brother and nephew and ended with the words “My will”, followed by a smiley face 😀.

 

One of the major issues with the use of emojis is that their meaning is not concrete.  Different people can ascribe different meanings to the same image.  In other instances, emojis can be used ironically, with an individual arguing they meant the opposite of what the emoji depicted.  Further, different devices can display emojis differently – sending an emoji in a text message from a Samsung can look dissimilar when received on an Apple.

 

So next time you go to add an emoji into your communications, you may be best to think twice ⁉️ 🤔 about the legal ramifications. And if that’s not enough to stop you, perhaps cast your eyes 👀 over this 2017 study which found the use of a smiley face 😀 in a professional context can decrease perceptions of competence.

 

Food 🍎 🍗 🍞 for thought 💭.

It never ceases to amaze what people are prepared to argue about; thank goodness I suppose.

 

A recent case in the Supreme Court demonstrates the lengths to which people in dispute will go, and the amount of Court time and legal costs that are spent arguing about what is objectively not important and perhaps trivial.  That however is the very nature of human beings in dispute.  For some reason these disputes seem to become particularly vitriolic and prolonged when they relate to the property of someone who has died.

 

The dispute in question involved the alleged ownership and value of jewellery that at some stage belonged to the deceased.  There was no satisfactory evidence before the court identifying all of the jewellery in question and nor was there satisfactory evidence, beyond assertion, as to the value of the jewellery.  The executors of the deceased asserted that the jewellery had a value of $30,000 and that the jewellery had been entrusted to Ms Tina Carter during the deceased’s lifetime.  The executors informed the Court that they had administered the estate and distributed the deceased’s assets on the basis that Ms Carter was in possession of the jewellery, having a value of $30,000.  Ms Carter on the other hand asserted that some jewellery had been gifted to her by the deceased and that the jewellery that had been gifted to her was worth $6685.  She alleged that the executors remained in possession of significant quantities of jewellery. Alternately she claimed that the executors had not distributed to her an amount of 30% of the deceased’s estate, as they had been directed by the deceased’s will.

 

The Court received evidence showing that the executors remained in possession of an amount of $45,000, the entire estate being worth about $137,000. The executors claimed that the jewellery entrusted by the deceased to Ms Carter properly represented her 30% share of the deceased’s estate.

 

The Judge deciding the case commented that it was most unfortunate that such a small estate had become the subject of such a considerable dispute.  He did however acknowledge that the case involved perceived matters of principle as being in issue and that the possession of the jewellery was genuinely in dispute.

 

The Judge ruled that there was insufficient evidence to establish that any jewellery in the possession of Ms Carter had been the subject of a gift by the deceased.  He said on the other hand there was no evidence that any particular item of jewellery owned by the deceased was in Ms Carter’s possession.  In circumstances where the evidence is so unsatisfactory, cases are usually dismissed. Surprisingly the Judge ordered the executors to pay Ms Carter $30,000 and pay her costs of the proceedings but then put those orders on hold and gave the executors a chance to produce further evidence as to the question of ownership possession and value of the jewellery of the deceased.

 

Judges are often criticised for being aloof, detached and uncaring about how their decisions effect the people involved in disputes.  Those criticisms could not be levelled at the Judge deciding this case.  In my view this is one dispute where the Judge would have been more than within his rights to send everybody packing – with no more than a tin ring as it were.

Over the last month, a number of clients – both old and new – have been coming through my doors in a panic.  Many have received letters from their workers compensation insurer’s advising their weekly benefits will be cut off.  Many of these people have received terrible injuries and are permanently unfit for work.  So – what can you or someone you know do if you find yourself in this frightening situation?

Section 39 of the Workers Compensation Act 1987 states that an injured worker’s weekly benefits will cease after a period of five years if the degree of permanent impairment resulting from their injury is 20% or less.  Under changes to the workers compensation scheme in 2012, this five year cut off is fast approaching for an estimated 7,000 injured workers in NSW – with many scheduled to lose their entitlements just prior to Christmas this year.  Some of these people have been found by the Compensation Court or Workers Compensation Commission to be permanently unfit but the Parliament has seen fit to introduce legislation overruling these findings.  Understand as well, this is all in the content of the WorkCover fund sitting on a massive operating surplus.  The whole thing stinks.

What the insurer’s often fail to disclose however, is that the 20% permanent impairment figure must have been assessed by an independent Approved Medical Specialist appointed by the Workers Compensation Commission.  It is not enough for an insurer to rely on their own doctors to reach a figure relating to the worker’s injury.  Of course, the insurer’s doctor will provide an opinion favourable to the insurer.

The Workers Compensation Independent Review Office (WIRO) is now taking applications from solicitors acting for injured workers relating to the assessment of section 39 claims.  If you, or someone you know, may be affected by this legislation, I encourage you to make an appointment to come and see me.  Workers who have been severely injured in the course of their employment – especially those who are now unfit to work at all – should not be left to fend for themselves.

Christmas brings with it a flurry of social activity.  People regard Christmas as a good time to gather together and celebrate the year just gone. The office or work party is very much a tradition of Christmas. So too is the tradition of drinking too much alcohol and behaving badly.

What are some employer traps during the festive season?

The law concerning Workers Compensation recognises that the office Christmas party is a continuation of a worker’s course of employment. This follows a 1992 decision of the High Court of Australia that held that a worker will be in the course of their employment even if they are on an interlude or an interval from performing actual work duties if the employer expressly or impliedly induces or encourages that employee to spend that interval or interlude at a particular place or in a particular way.

The facts of the High Court decision in question were that a worker was in a remote location in Western Australia working on a mining project. During a day away from working activities his employer organised for him and other work mates to travel to the Wittenoom Gorge for a sight-seeing trip. The employer organised the trip and paid for transport and meals. The worker was injured and was ultimately found to be found entitled to compensation even though he was not in fact performing any work activities at the time he was injured.

This principle has since consistently been applied, sometimes reluctantly by Courts, and has led inevitably to an acceptance that the office Christmas party is an event that is in the course of a worker’s employment – usually.

Attendance at the social function by workers must be induced or encouraged by the employer. A decision of the now abolished Compensation Court of NSW provides an illustration of where a social function, and by extension a Christmas party, will not be in the course of employment. In that case the employer had paid for the function and had permitted the fact of the function to be advertised on its office notice board. A worker was injured during the function and claimed compensation. The Judge ruled that the mere payment for the function and advertisement of it was not properly seen as inducing or encouraging workers to attend.

If however workers are encouraged or induced to attend the office Christmas party then real care needs to be taken with the service of alcohol. The cases seem to suggest that if alcohol is served and excessive alcohol is either implicitly or expressly encouraged by the employer then it is pretty much anything goes. A decision that illustrates this point is one where a worker was injured while crash tackling his co-workers, or on another version, being crash tackled by another co-worker at the work Christmas party.

The evidence disclosed that the injured worker was behaving obnoxiously, that he was irritable, and that he was very drunk. The evidence disclosed that he had been in a dispute with his employer and that his employer had called him a “whinging cat”. The Workers Compensation Commission however held that the worker was injured in the course of his employment despite the fact that he was involved in very vigorous activity that on a common-sense view was not related to his employment. This was because his employer had fuelled the bad behaviour by providing an unlimited supply of free alcohol. The Workers Compensation Commission held that the employer impliedly encouraged the excessive consumption of alcohol and took no effective steps to stop the worker from getting drunk when it was in a position to do so.

Stay tuned – next week I will look at employee traps during the festive season.

The recent media coverage surrounding the death and serious injury of two newborn babies at Bankstown Hospital was understandably met with public horror.  How could our health system have failed these families in such a tragic way?

Yet these sad circumstances also remind us of a second horror – that our legal system does not provide an avenue for compensation arising out of the wrongful death of a child.

In my experience in acting for families who have lost a child as a result of medical negligence, their first and foremost wish is for acknowledgement of their loss; for someone to accept responsibility.  While damages will never change the situation or speed up the grieving process, they do go some way to acknowledge the fault and loss of a child’s life.

It must be said, the Compensation to Relatives Act 1897 makes provision for the payment of funeral expenses.  Furthermore, the Civil Liability Act 2002 permits an award of damages – but only if a parent can prove they have suffered a recognisable psychiatric illness arising out of the death of their child.  This will often result in a drawn-out legal process where the parent will be subject to medical appointments and doctors attempting to quantify and name a parent’s suffering.  A parent’s claim may not be able to be settled at all until the parent’s illness has reached its peak.

In light of recent events, perhaps it is time to ask if the current measures are adequate or if medical negligence law should be expanded to recognise the distress and grief that inevitably emerges from the death of a child.