Scott Fava sues former Waratahs physio

[Brumby Jack]

An interesting article that I came across...

FORMER Wallaby Scott Fava has sued the Waratahs rugby union team physiotherapist, claiming he was to blame for ending Fava's playing career.

http://www.news.com.au/lifestyle/he...-star-scott-fava/story-fneuzle5-1226559539921

 

[rugbysmartarse]

oh brave new world.....

I wonder what the Tahs responsibility in this matter is? As the employer will they bear the brunt of any decision?

 

[fatprop]

oh brave new world...

I wonder what the Tahs responsibility in this matter is? As the employer will they bear the brunt of any decision?

This is a insurance matter

 

[Braveheart81]

This is a insurance matter

Yes. This is why people have (and have to have) professional/medical indemnity insurance.

This is a shame for Scott Fava and for the physio if he did indeed cause the injury. Hopefully it is settled without too much drama so everyone can move on with their lives.

 

[mark_s]

the article says a confidential settlement was reached last week

 

[thierry dusautoir]

Interesting that scott would bring this all up now instead of when he actually had to retire

 

[ACT Crusader]

the article says a confidential settlement was reached last week

Yeah the matter appears to be settled. BUt if he was suing anyone for injury perhaps he should have gone after Vili Satala for that fend....

 

[suckerforred]

Interesting that scott would bring this all up now instead of when he actually had to retire

It has come to settlement just now. The process could quite possibly have started in 2009. I am guessing it would take a while for a professional sportsman to prove loss of earnings.

 

[fatprop]

the article says a confidential settlement was reached last week

and why wouldn't a "confidential settlement" include a non disclosure clause?

Sack the lawyer

 

[Braveheart81]

and why wouldn't a "confidential settlement" include a non disclosure clause?

Sack the lawyer

I'm not sure what you're saying, but the fact that a confidential settlement has been reached is public knowledge because it becomes the reason that the matter in court is cancelled.

 

[suckerforred]

and why wouldn't a "confidential settlement" include a non disclosure clause?

Sack the lawyer

Fact that a settlement has been reached is not confidential. Terms of the settlement are. I am guessing cause it would have something in there about the physio admitting or not admitting responsibility & therefore affect his ability to remain registered & earn a living in the future.

I am sumising here.

 

[fatprop]

Actually the whole article is just court reporting and supposition.

The only "quotes" are from his original claim and a no comment from his lawyer so there probably was a non disclosure

 

[Inside Shoulder]

Fact that a settlement has been reached is not confidential. Terms of the settlement are. I am guessing cause it would have something in there about the physio admitting or not admitting responsibility & therefore affect his ability to remain registered & earn a living in the future.

I am sumising here.

You sure are.

They are confidential because usually the professional includes confidentiality as a term of the settlement in order to protect his or her reputation. Also the professional usually requires that the formal record reflect that the plainitff (Fava, in this case) lost the case: i.e. there is usually judgment for the defendant and a side agreement by deed of release is entered into. Most settlements, however they are formally recorded, include something indicating that there is no acceptance that the professional is liable or was negligent.

A single instance of negligence will rarely affect any professional's ability to continuing practicing: gross negligence is or repeated or continued negligence are required. So settling one case usually has no direct implication for registration.

Any claim against a professional (or anyone) can affect that person's ability to renew insurance when the time comes. If the profession in question is required to be insured then the inability to get insurance cover may prevent that person continuing to practice.

While I'm correcting misconceptions:
The damages payable for work injuries are not big - thus it may have been a waste of time for Fava to sue the Tahs. His damages may have been small for a number of reasons: if he was having a cortisone injection he was already in some trouble and his ability to go and play in Japan (where I understand the pre meds are stringent) or France may have been under a cloud.

I doubt a vacated court date would have made the settlement public because it is highly unlikely there would have been a hearing date allocated to the case - but there is provision for the public to inspect court files: http://www.lawlink.nsw.gov.au/pract...5f2bddd07a106a9fca2572ed000cec95?OpenDocument

The matter was actually in court today:

 

[suckerforred]

You sure are.

They are confidential because usually the professional includes confidentiality as a term of the settlement in order to protect his or her reputation. Also the professional usually requires that the formal record reflect that the plainitff (Fava, in this case) lost the case: i.e. there is usually judgment for the defendant and a side agreement by deed of release is entered into. Most settlements, however they are formally recorded, include something indicating that there is no acceptance that the professional is liable or was negligent.

A single instance of negligence will rarely affect any professional's ability to continuing practicing: gross negligence is or repeated or continued negligence are required. So settling one case usually has no direct implication for registration.

Any claim against a professional (or anyone) can affect that person's ability to renew insurance when the time comes. If the profession in question is required to be insured then the inability to get insurance cover may prevent that person continuing to practice.

While I'm correcting misconceptions:
The damages payable for work injuries are not big - thus it may have been a waste of time for Fava to sue the Tahs. His damages may have been small for a number of reasons: if he was having a cortisone injection he was already in some trouble and his ability to go and play in Japan (where I understand the pre meds are stringent) or France may have been under a cloud.

I doubt a vacated court date would have made the settlement public because it is highly unlikely there would have been a hearing date allocated to the case - but there is provision for the public to inspect court files: http://www.lawlink.nsw.gov.au/pract...5f2bddd07a106a9fca2572ed000cec95?OpenDocument

The matter was actually in court today:
View attachment 3168

See you get an education here as well. Thanks for that. What does the 'Return of Subpoena' mean?

 

[ACT Crusader]

Fact that a settlement has been reached is not confidential. Terms of the settlement are. I am guessing cause it would have something in there about the physio admitting or not admitting responsibility & therefore affect his ability to remain registered & earn a living in the future.

I am sumising here.

However, the article is quoting from the statement of claim. As I understand it, statements of claim lodged with the Supreme Court aren't public documents so that just leaves one of the parties or lawyers of the parties to have provided them to the journo.

 

[Inside Shoulder]

See you get an education here as well. Thanks for that. What does the 'Return of Subpoena' mean?

someone has issued a subpoena (a document requiring someone else to produce documents or things to the court) and the return of it is the day by which it has to be produced and on which people argue about the right of anyone else to see what is being produced - I found this as a neutral example:
http://www.criminallawsurvivalkit.com.au/Schedule.html

 

[Inside Shoulder]

However, the article is quoting from the statement of claim. As I understand it, statements of claim lodged with the Supreme Court aren't public documents so that just leaves one of the parties or lawyers of the parties to have provided them to the journo.

See item 7:
http://www.lawlink.nsw.gov.au/pract...5f2bddd07a106a9fca2572ed000cec95?OpenDocument

 

[ACT Crusader]

See item 7:
http://www.lawlink.nsw.gov.au/pract.5f2bddd07a106a9fca2572ed000cec95?OpenDocument

Cheers IS.

 

[BPC]

You sure are.

They are confidential because usually the professional includes confidentiality as a term of the settlement in order to protect his or her reputation. Also the professional usually requires that the formal record reflect that the plainitff (Fava, in this case) lost the case: i.e. there is usually judgment for the defendant and a side agreement by deed of release is entered into. Most settlements, however they are formally recorded, include something indicating that there is no acceptance that the professional is liable or was negligent.

A single instance of negligence will rarely affect any professional's ability to continuing practicing: gross negligence is or repeated or continued negligence are required. So settling one case usually has no direct implication for registration.

Any claim against a professional (or anyone) can affect that person's ability to renew insurance when the time comes. If the profession in question is required to be insured then the inability to get insurance cover may prevent that person continuing to practice.

While I'm correcting misconceptions:
The damages payable for work injuries are not big - thus it may have been a waste of time for Fava to sue the Tahs. His damages may have been small for a number of reasons: if he was having a cortisone injection he was already in some trouble and his ability to go and play in Japan (where I understand the pre meds are stringent) or France may have been under a cloud.

I doubt a vacated court date would have made the settlement public because it is highly unlikely there would have been a hearing date allocated to the case - but there is provision for the public to inspect court files: http://www.lawlink.nsw.gov.au/pract...5f2bddd07a106a9fca2572ed000cec95?OpenDocument

To expand on IS's comments.

When an insurer is involved, from personal injury to professional indemnity, almost any settlement is confidential. This use to be done by a confidentiality provision in the Deed of Settlement (the formal document filed, stamped with the court seal and kept on the court file to record the terms of the settlement) but a few years ago courts began to refuse to make settlements confidential and so more and more settlement are done by a side deed which is not filed in court and which contains the terms of settlement.

Generally, the defendant (professional) insists on confidentiality. While the defendant would prefer judgment in his/her favour, a plaintiff would (if properly advised) be reluctant to allow this as the public record is they lost which may well not be the case. Most proceedings are usually discontinued with no order as to costs. This means there is no judgment one way or the other, the proceedings are simply stopped and the court does not order either party to pay the other party's costs, ie, each party pays their own costs. In reality, costs will usually be factored into the settlement amount.

To be clear, whether the proceedings are resolved by judgment, discontinuance etc has no bearing on the insurance question. The insurer will factor the claims history into the premium based on the amount paid out. A professional who gets judgment in his/her favour but still has to pay out a whopping amount pursuant to a side deed will not be a happy chappy when he/she gets the renewal notice with the next years premiums.

The claim against the physio is a 'medical negligence' claim and Fava would have had a lot of hurdles to overcome. As IS notes, he was already injured. He therefore has to prove that the treatment properly applied would have had him able to play in say 8 weeks, but the treatment was wrongly applied and he could not play for say 16 weeks. This is very subjective and much harder to prove than, for example, the surgeon was to amputate the right hand and instead removed the left foot which is much less ambiguous. Also, even if Fava is unhappy with the treatment and claims another treatment was better, the physiotherapist may be able to rely on the defence that the treatment was nevertheless one that was generally accepted by many physiotherapists (section 5O Civil Liability Act 2002 (NSW)). Assuming he gets over those hurdles, his damages are going to be restricted by the fact that he was towards the end of his rugby career anyway, there was a reasonable chance of further injury that would restrict his playing in the future even if he had returned, what were the real odds of his playing in Japan or France, his ability to earn an income other than from rugby etc.

As IS noted, it was unlikely to be a multi-million dollar case.

 

[Braveheart81]

There also must be some chance that Fava contributed to his slipped disc when he threw the quokka.

I know I put my back out when I went quokka tossing.