Kate Denning

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Kate Denning

Kate Denning is the Founder & Principal of Denning Insurance Law. Kate opened her own practice out of a desire to deliver high value, specialised legal services. Kate has been practising as a solicitor in Queensland for over 15 years. Her passion for delivering great results, approachable manner and breadth of experience, set her apart from her competitors.

Late reporting of injury and other problems on quantum

Late reporting of injury and other problems on quantum

Case note: Evans v Williams [2018] QDC 210

A 51 year old kitchenhand, Ms Marie Evans, was injured while executing a right hand turn, when a vehicle coming in the opposite direction collided with the front of her car.

The accident happened in September 2015 and the compulsory third party insurer for the vehicle at fault, Allianz Australia Insurance Ltd, admitted liability for the circumstances of the accident.

Facts

Ms Evans sought damages for a musculo-ligamentous injury to her lumbar spine, bilateral hip injuries and a psychiatric injury as a result of the accident.

Ms Evans was born in Mauritius, educated to grade 11 and came to Australia in 1986. She had a number of jobs in her working life and it was only when her children were growing up that she was unable to maintain steady employment. Ms Evans returned to work the day after the accident but called in sick the following day because her pain ‘was getting really bad’. Her evidence was that there had been no time following the accident when she felt ‘completely free of pain’.

Her first attendance with a medical practitioner after the accident was on 4 March 2016, when she consulted a general practitioner about problems with her left ear. There was no complaints of back or hip pain during that attendance.

Ms Evans did not tell her employer (RSL Care) about the motor vehicle accident at that time because she was afraid of losing her job, however, she adjusted her work hours to start work early and finish a little later at times.

On 28 April 2016, Ms Evans resigned from her employment. Her letter of resignation did not make reference to issues relating to her back or hip. In the fortnight prior to her resignation, Ms Evans worked a 76 hour fortnight.

She first sought treatment for lower back pain on 13 May 2016, over eight (8) months after the accident. The entry in the general practitioner’s notes noted, ‘[n]o preceding trauma’. Ms Evans had an attendance with another general practitioner on 8 June 2016, at which time hip pain was reported. The clinical notes noted that her symptoms had been ongoing for, ‘the last year or so’ and stated that Ms Evans, ‘[d]id heavy lifting for a long time’.

The symptoms experienced by Ms Evans were not linked to the subject accident until after she attended with her solicitors on 8 September 2016. On 16 September 2016, almost one (1) year after the accident, a doctor with whom she attended linked the lower back pain to the motor vehicle accident.

Following her resignation from RSL Care, Ms Evans secured employment with the Logan City Council and after that, received Centrelink benefits for a short period of time, before commencing employment with her current employer, Homelife.

Expert evidence

Ms Evans relied upon the expert opinions of Drs Shaw (Orthopaedic Surgeon) and De Leacy (Psychiatrist). The Defendants relied upon the opinions of Dr Boys (Orthopaedic Surgeon) and Professor Whiteford (Psychiatrist).

Dr Shaw assessed Ms Evans as suffering a 6% whole person impairment (WPI) under AMA5 and Dr Boys assessed her as suffering a 5% WPI. Dr Shaw accepted at trial that if, in truth, the back and hip pain arose nine (9) months after the motor vehicle accident, it was, ‘very, very unlikely’ that the pain was related to the accident. Dr Boys did not relate the hip injury to the accident. As to her back pain, Dr Boys was of the view that she could have experienced temporary back pain which resolved and then symptoms related to her degenerative back condition when she sought treatment in May 2016.

Psychiatrists Professor Whiteford and Dr De Leacy assessed Ms Evans as suffering a 4% and 5% PIRS rating respectively. Professor Whiteford diagnosed Ms Evans as suffering from an Adjustment Disorder with depressed mood. Dr De Leacy diagnosed an Adjustment Disorder with mixed anxiety and depressed mood. Both accepted that if the motor vehicle accident did not cause a physical condition, then any psychiatric condition would not be related to the accident.

Judgment

Justice Jarro doubted the reliability of some of Ms Evans’ evidence regarding the extent of her accident related injuries and the sequelae arising from it, however, he was not prepared to reject the entirety of her claims.

The lack of contemporaneous medical reporting and reporting to Ms Evans’ employer, RSL Care (notwithstanding her reason for doing so) was given considerable weight in the judgment. Justice Jarro was not satisfied that these deficiencies could be ameliorated by lay witness accounts of Ms Evans’ demeanor or presentation pre-accident versus post-accident.

In Justice Jarro’s reasons, he highlighted a statement by Justice Gotterson in Edington v Board of Trustees of the State Public Sector Superannuation Scheme [2016] QCA 247 at 57 on causation:

This submission employs the assumption that because an event occurs after another, that event must have been caused by the other. Reasoning on the basis of such an assumption, as the appellant does here, is flawed logic. The flaw is deepened when the reasoning is sought to be used to exclude any other preceding event from having had a causal relationship with the event which occurs later in time.

Ms Evans was awarded damages as follows:

General Damages – $15,750

Past Economic Loss – $103

Interest on Past Economic Loss – $4.14

Past Loss of Superannuation – $9.53

Future Economic Loss – $20,000

Future Loss of Superannuation – $2,200

Past Special Damages – $1,773.08

Interest on Past Specials – $24.52

Future Special Damages – $2,500

Total – $42,364.27

Considerations

This judgment will be of interest to insurers and personal injury lawyers. It highlights the importance of considering the following matters in claims for personal injuries:

(1) when and what injuries are reported to medical practitioners and employers;

(2) letters of resignation given by plaintiffs to employers following an accident;

(3) the timing of a plaintiff’s initial attendance with their solicitors on a claim in the context of the medical evidence at that time;

(4) the stated cause of alleged accident related symptoms at all medical attendances;

(5) the questions which are likely to be put to expert witnesses at trial in cases of late reporting;

(6) whether lay evidence is likely to be of assistance in addressing late reporting of symptoms by plaintiffs.

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7 tips for dealing with insurance claims

7 tips for dealing with insurance claims

If you’re reading this, you’ve probably either had a bad experience with an insurer or you know someone who has. On a daily basis I receive calls from individuals and businesses who are in a dispute with their insurer about cover extending to a claim or the value of the claim.

There is good news. As an insured, there are things that you can do to give yourself the best shot at your claim being paid, without setting one foot inside a Court room. For most insureds, litigation is expensive and they would be far better off resolving a claim out of Court.

Tip 1: Keep a record of conversations

If you’ve ever called an insurer you will have heard a message which tells you that the call is being recorded for ‘quality and training purposes’.  The record keeping of an insurer (like many organisations) is not foolproof. For this reason, you should keep a record of all calls that you have with the insurer. Keep a record of the date and time of the call, the person you spoke to and the content of the discussion. If something important is discussed, follow up the discussion with an email to the insurer confirming the discussion and the information that they provided.

Don’t record your telephone call using an app on your mobile or a device which is attached to your phone. It is unlawful to record a telephone call with a device physically attached to the telephone and this may include an app on your mobile: Telecommunications (Interception) Act 1979 (Cth). In Queensland, it is lawful for a telephone call to be secretly recorded by an external device (like a dictaphone or an app on a computer) by a person who is a party to the conversation: section 43, Invasion of Privacy Act 1971 (Qld). If you are outside of Queensland, you should check the laws in your State or Territory about recording of conversations.

Tip 2: Get your policy documents

The starting point for any claim is to consider the wording of your insurance policy. In particular, you will need a copy of your schedule of insurance and policy wording (Product Disclosure Statement). You can request these from your insurer or insurance broker.

Most people look no further than their policy wording. You need to read the schedule of insurance with the policy wording. The schedule of insurance talks to the policy wording – it’s like using a key for a map, your schedule of insurance helps you understand how the policy operates for YOU. The policy wording is the same for many insureds but the schedule of insurance explains how you are covered.

Tip 3: Prove your claim and then prove it again (if necessary)

If you make a claim against your insurance – you are required to prove your claim and co-operate with your insurer. This means that you need to provide information to the insurer about the circumstances of the loss and its value. The types of documents and information you should provide vary from claim to claim. Some of the documents you could gather to prove your claim may include: a police report; statements; photographs; invoices; quotes; and, expert reports. Damaged items should not be disposed of if they are relevant to your claim.

Your insurer may appoint a loss adjuster or investigator to consider the value of your claim and whether the loss falls within the cover provided by the policy. Generally speaking, anyone appointed by the insurer to investigate the claim is an agent for the insurer. You should undertake your own investigations with third parties to consider whether the claim has been properly assessed. The cost of doing so may be recoverable against your insurer as ‘claims preparation costs’, however, policies generally require insureds to seek approval from the insurer before incurring these costs.

Once you have gathered as much documentation as possible and you have provided that to your insurer, the insurer may still have concerns. Depending on their response it may be necessary to provide more information or documents in support of your claim.

Tip 4: Request documents

You should request (in writing) copies of all documents that the insurer receives from third parties like reports, quotes, statements, invoices, photographs. You should also request copies of transcripts or audios from conversations with insurers if you think that you have been provided with inconsistent information during the claim process or, when you first placed your cover.

Many insurers subscribe to the 2014 General Insurance Code of Practice. See the full list of insurers subscribed to the Code here. The Code states that insurers will provide copies of reports and other information relevant to a decision to deny cover in certain circumstances. Click here to read a copy of the Code.

Tip 5: Make a complaint

If you are dissatisfied with how your claim is managed or with a decision by your insurer, you can submit a complaint. Your policy will outline the complaints process and should state a telephone number, address and/or email address for this purpose.

I often here from people that they are dissatisfied with the quality of communication from the insurer or the insurer’s agent – e.g. they weren’t provided with adequate information, their calls weren’t returned or they were required to speak to someone new every time they called the insurer. These are legitimate concerns by customers of any organisation and insureds are right to raise them with their insurers. However, it is important to get to the heart of the issue and to identify what is stopping your claim from being accepted or paid. If you cannot work out what the issue is – seek clarification from your insurer and/or advice from your broker, or an independent solicitor.

Once you have submitted your complaint, wait for the complaints resolution period to expire. If it expires and you do not hear from the insurer – follow them up in writing and by telephone. If the complaint does not lead to the claim resolving to your satisfaction, the complaints process should give you more of an idea about the insurer’s concerns.

Tip 6: Seek advice early

I speak to insureds at all stages of their claims. Some people contact me immediately after an event; some contact me years afterwards. Generally speaking, the sooner insureds obtain professional advice from their insurance broker or an independent solicitor, the better.

Tip 7: Request an internal review

An internal review is an opportunity for an insured to ask their insurer to review their decision about a claim and consider the claim again. You may provide the insurer with new information or evidence to consider. Your policy will explain the timeframes within which your insurer is required to make a determination. It is appropriate to seek legal assistance with preparing submissions to the insurer in support of your claim.

Next steps

Once the insurer has internally reviewed its decision, you should seek legal advice about the most appropriate next step in your matter (if you have not already done so). The next appropriate step may be to apply to the Financial Ombudsman’s Service, start proceedings in the Court or apply to the Court for declaratory relief.

Dealing with insurance claims can be particularly stressful and for most insureds it is a foreign experience. It is important to speak to an experienced solicitor or, your insurance broker, at an early stage to ensure that your rights and interests are properly protected.

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Kate Denning7 tips for dealing with insurance claims
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Court restrains Plaintiff from communicating with legally represented Insurer

Court restrains Plaintiff from communicating with legally represented Insurer

Case note: Day v Woolworths Ltd & Ors [2018] QSC 82

Two Defendants have been successful in obtaining an interlocutory injunction from the Supreme Court of Queensland to restrain a Plaintiff from communicating with their insurer, Zürich Australian Insurance Limited and associated companies.

Background

The Plaintiff commenced proceedings against CPM Australia Pty Ltd, Retail Activation Pty Ltd (Second and Third Defendants) and Woolworths Ltd. The Plaintiff seeks damages for personal injuries which she claims to have suffered in an accident at the premises operated by Woolworths Ltd.

Zurich Australian Insurance Ltd is the insurer of the Second and Third Defendants.

The Plaintiff’s conduct complained of by the Second and Third Defendants, is summarised as follows:

  • The Plaintiff’s husband, on her behalf, threatened to report employees of Zürich to various bodies.
  • The Plaintiff communicated to Zürich, including its directors, allegations of unethical and improper conduct by the solicitors for the Second and Third Defendants.
  • The Plaintiff’s husband, on her behalf, has accused the directors of Zürich of misusing shareholders’ funds by encouraging the solicitors for the Second and Third Defendants to continuing to defend their claim.
  • The Plaintiff and her husband in correspondence to Zürich’s Australian General Counsel and Secretary, who happens to be a lawyer, also copied to Zürich’s Chief Executive Officer and Directors, accused Zürich’s General Counsel “or your other officers” of using the court process for improper purposes, professional misconduct and breach of the Corporations Act. The Plaintiff and her husband also accused two solicitors from the firm acting for the Second and Third Defendants of corrupt conduct in breach of the Crime and Corruption Act 2011.
  • The Plaintiff and her husband accused Zürich’s General Counsel of authorising or instructing criminal conduct in fraudulently forging and uttering a certificate of readiness by the second and third defendant solicitors.

Although the Plaintiff is a litigant in person, she is close to completing a law degree, has worked in the legal profession for a firm of lawyers and has been involved in litigation on several occasions in the past.The Court was satisfied that the Plaintiff was aware of the fact that, if she were a lawyer, she would not be able to behave in this way.

Elements of an Interlocutory Injunction

In order to obtain an interlocutory injunction, a party must demonstrate to the Court that:

  • There is a serious question to be tried;
  • Damages are not an adequate remedy; and
  • The balance of convenience favours the granting of an injunction.

Decision

The Court ordered that the Plaintiff be restrained from:

(a) contacting or communicating with Zurich Australian Insurance Limited and three other associated Zurich companies, or any director, officer, employee or agent of Zurich, other than Mills Oakley Lawyers, Zurich’s solicitors, in relation to this proceeding, or any matter connected with this proceeding, by any means whatsoever; and/or

(b) allowing, causing, encouraging, permitting or suffering any person on her behalf to contact or communicate with Zurich or any director, officer, employee or agent of Zurich, other than Mills Oakley Lawyers, Zurich’s solicitors, in relation to this proceeding, or any matter connected with this proceeding, by any means whatsoever,

until the conclusion of these proceedings or further order.

The question of costs was reserved.The Plaintiff provided an undertaking in the terms of the first order at the conclusion of the oral hearing, however, the Court considered it appropriate to extend those undertakings by making orders in the same terms until the conclusion of the proceeding or further order.

Ratio

The Court noted that, even where parties are represented, ‘absent some form of improper or inappropriate behaviour on the part of a party or parties’, there was generally no reason why the parties should be prevented from communicating directly with each other.

However, a key consideration for the Court was whether conduct, like that which was complained of, might affect the ordinary and unimpeded course of proceedings.The Court had regard to commentary in R v Dunn on the role of the law of contempt in the administration of justice:-

that is, in the resolution of disputes, not by force or by private or public influence, but by independent adjudication in courts of law according to an objective code [such] that a case pending in a court ought to be tried in the ordinary course of justice…

In arriving at the decision, the Court determined:

  • There was a real issue of whether the conduct complained of constituted an attempt to dissuade Zurich from supporting the Second and Third Defendants in their defence of the proceedings by threats, abuse and misrepresentation of the nature of the proceedings or the circumstances out of which they arose;
  • The Defendants may suffer injury for which damages will not be an adequate remedy if they are impeded in defending the litigation by the need to deal further with communications of this nature or if they are persuaded to settle the proceedings to the disadvantage of the Second and Third Defendants;
  • The public or private interest the Plaintiff may have in continuing to communicate with Zurich was overridden by the second and Defendants’ rights to an unimpeded defence of the claim.

Considerations

It is not unusual for parties to become frustrated with litigation or the tactics of an opposing party. However, legitimate legal arguments and concerns about the way that a party has conducted a matter should be reserved for a party’s pleaded case, formal correspondence and proper Court processes. This decision may be of interest to those involved in litigation where one party is threatening to go to the media or in cases where one party may be having improper contact with another party.

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Kate DenningCourt restrains Plaintiff from communicating with legally represented Insurer
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Offers, Costs and Rehabilitation in CTP Claims

Offers, Costs and Rehabilitation in CTP Claims

Case note: McDermott v Manley & Anor [2018] QSC 35

A Claimant has been unsuccessful in an application to the Supreme Court of Queensland for a declaration that a Compulsory Third Party (CTP) insurer’s Mandatory Final Offer (MFO) should be increased for the rehabilitation services paid by the insurer.

The application was brought with a view to allowing the Claimant to recover a higher amount for costs.

Background

Mr McDermott (Claimant) brought a claim for personal injuries arising out of a motor vehicle accident under the Motor Accident Insurance Act 1994 (Qld) against RACQ Insurance Limited (RACQ).

The claim proceeded to a Compulsory Conference. RACQ delivered a MFO stating:

‘We have considered all of the material presently available to us and we are prepared to offer your client the amount of $53,000 inclusive of all heads of damage and statutory refunds, exclusive of payments made to date to or on behalf of your client in the sum of $22,318.11. Pursuant to section 51C(6) of the Motor Accident Insurance Act (as amended), this offer remains open for a period of fourteen (14) days.’

The MFO was silent on costs. The Claimant’s solicitors responded by noting that the offer equated to a gross offer of $75,318.11.

RACQ did not provide the Claimant’s lawyers with notice pursuant to section 51(4) of the Act before funding rehabilitation. RACQ disputed the Claimant’s characterisation of the offer. The Claimant’s solicitors wrote to RACQ stating that the Claimant would accept the offer if it was for $75,318.11.

A MFO of $53,000 would limit RACQ’s liability for costs to $3,600 under the Motor Accident Insurance Regulation 2004 (Qld). An offer of $75,318.11 would allow the Claimant to recover standard costs.

The Claimant made application to the Court for a declaration that the MFO was for damages of $75,318.11, inclusive of statutory refunds and plus standard costs and outlays to be agreed or assessed.

Legislation

The relevant parts of section 51 of the Motor Accident Insurance Act 1994 (Qld) provide as follows:

’51 Obligation to provide rehabilitation services

(4) If the insurer intends to ask the court to take the cost of rehabilitation services into account in the assessment of damages, the insurer must, before providing the rehabilitation services, give the claimant a written estimate of the cost of the rehabilitation services and a statement explaining how, and to what extent, the assessment of damages is likely to be affected by the provision of rehabilitation services. 

(9) The cost to the insurer of providing rehabilitation services under this section is to be taken into account in the assessment of damages on the claim if (and only if) the insurer gave a statement to the claimant, as required under subsection (4), explaining how and to what extent the assessment of damages was likely to be affected by the provision of the rehabilitation services.

(9A) If the cost of rehabilitation services is to be taken into account in the assessment of damages, the cost is taken into account as follows-

(a) the claimant’s damages are first assessed (without reduction for contributory negligence) on the assumption that the claimant has incurred the cost of the rehabilitation services as a result of the injury suffered in the accident; 

(b) any reduction to be made on account of contributory negligence is then made; 

(c) the total cost of rehabilitation services is then set-off against the amount assessed.

Example-

Suppose that responsibility for a motor vehicle accident is apportioned equally between the claimant and the insurer. Damages (exclusive of the cost of rehabilitation) before apportionment are fixed at $20,000. The insurer has spent $5,000 on rehabilitation services. In this case, the claimant’s damages will be assessed under paragraph (a) at $25,000 (that is, as if the claimant had incurred the $5,000 rehabilitation expense) and reduced to $12,500 under paragraph (b), and the $5,000 spent by the insurer on rehabilitation will be set off against this amount, resulting in a final award of $7,500.’

Decision

The Court dismissed the Claimant’s application and in doing so, found that the Claimant had not accepted RACQ’s offer. The Claimant was ordered to pay RACQ’s costs.

Ratio

It was found that because the insurer had elected to bear the costs of rehabilitation, those rehabilitation expenses were irrelevant to the MFOs.

The judgment relied upon the analysis of the above subsections in Aldridge v Allianz Australia Insurance Ltd [2009] QSC 257.

Considerations

This judgment is the first reported case to address whether rehabilitation expenses could be added to damages in a MFO to give a Claimant a more favourable entitlement to costs.

The decision clarifies that where a CTP insurer:

(a) agrees to bear amounts by way of rehabilitation expenses; and

(b) does not provide a notice under section 51(4),

those rehabilitation expenses will be disregarded in considering the cost consequences which flow from a MFO.

The Court found that it is only in circumstances where subsection 51(9A) applies, that rehabilitation expenses may be added to the damages (of course, they must then be set off).

Prior to amendments to the legislation in 2000, the rehabilitation expenses paid by an insurer were required to be taken into account in the assessment of damages in all claims: subsection 51(9) Motor Accident Insurance Act 1994 (Qld) (Act No.9 of 1994). However, subsection 51(9) of the Motor Accident Insurance Act 1994 (Qld) (Act No.9 of 1994) was not tested in relation to costs and MFOs; and it is unclear what ‘taken into account’ meant in that repealed subsection.

The decision will be welcomed by CTP insurers.

As a matter of strategy, CTP insurers may be inclined to be more generous in their funding of ‘rehabilitation services’ to reduce their MFO and consequently, their exposure to costs. Rehabilitation may be paid at any time prior to the exchange of MFOs.

The result highlights the need for parties to take care to draft their MFOs in a way which clearly explains the offer proposed. If RACQ’s offer in this case had been drafted to refer to statutory costs, the application may have been avoided.

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Kate DenningOffers, Costs and Rehabilitation in CTP Claims
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What is a trip hazard?

What is a trip hazard?

Case note: The Thistle Company of Australia Pty Ltd v Bretz & Anor [2018] QCA 6

A service station owner has been unsuccessful in its appeal of a decision of the District Court of Queensland to award $96,000 to a man who tripped on the plinth of a petrol bowser. The decision by the Queensland Court of Appeal provides some insight into what a court might consider a trip hazard to be in a public liability claim.

The accident happened in 2012, when the man was aged 80.

Background

Mr Bretz attended the service station and filled his van and 2 x 20 litre drums with fuel. He was unfamiliar with the servo but CCTV footage showed that he spent several minutes walking around the bowser area. As he was doing so, he was looking down and his feet were close to the plinth of the bowser at times. When he finished he ‘took off to walk around the bowser, and the next thing [he] knew [he] was heading for the bitumen’.  Mr Bretz tripped or lost his footing when the ball of his foot hit the edge of the plinth.

The petrol bowser was centred on a raised concrete platform or plinth. The plinth extended 30cm from the edge of the bowser and was 37mm – 39mm high. It was painted black just two weeks prior to Mr Bretz’s fall. Before that it was yellow. It was repainted because the yellow paint was wearing off and there had been customer complaints about the slipperiness of the plinths.

Mr Bretz brought proceedings in negligence against the service station owner, The Thistle Company of Australia Pty Ltd (the TCA). The TCA brought a claim against Tam Farragher & Associates Ltd (TFA), who designed the concrete plinth.

Mr Bretz succeeded in his claim in negligence against the TCA in the District Court. The TCA failed in its claim against TFA, who had an exclusion clause in their favour. The TCA appealed the decision to the Queensland Court of Appeal.

The Appeal

The TCA challenged the following findings of the District Court:

(1) the plinth was not an ‘obvious risk’;

(2) the risk was ‘not insignificant’;

(3) Mr Bretz was not contributorily negligent;

(4) TCA’s third party claim against TFA should be dismissed.

The finding that the plinth was not an ‘obvious risk’

The TCA argued that the trial judge ought to have found that the plinth was an ‘obvious risk’ within the meaning of section 13 of the Civil Liability Act 2002 (Qld) and that it had no duty to warn Mr Bretz of its presence. The Court rejected the TCA’s argument because:

(1) the repainting of the plinth camouflaged it;

(2) the rise of the plinth was only 37mm. It was ‘high enough to trip someone, but not so high to be immediately apparent’;

(3) the plinth was difficult to see because it was located close to where customers would park;

(4) the trial judge appropriately determined that the risk was not ‘obvious’ to a reasonable person in the position of Mr Bretz having regard to the shallow nature of the plinth, that it was an unusual feature of the site, Mr Bretz’s limited experience of the site and that it was camouflaged.

The finding that the trip risk was ‘not insignificant’ 

The TCA contended that the trial judge should have determined that the risk of tripping on the plinth was insignificant. Under section 9 of the CLA a person does not breach a duty to take precautions against a risk of harm unless (among other things) the risk was ‘not insignificant’.

There had been multiple complaints about the slipperiness of the original surface. The only complaint about the plinth after it was painted was the complaint by Mr Bretz. The trial judge found that there was evidence that others had tripped or slipped because of patterns of wear on the plinths.

The TCA argued that the trial judge conflated the episodes of complaint about slipperiness with that of tripping. The Court rejected the TCA’s criticism of the trial judge’s reasoning and noted:

(1) a customer tripping and falling at a service station was one of the business’s highest operational risks;

(2) there was no operational reason to make the plinth the same colour as the surrounding ground beyond the aesthetic. The removal of the visual cue increased the risk of falling, and with a risk of falling, comes a risk of serious injury;

(3) the very risk which eventuated was one which was identified prior to the incident;

(4) it was open to the trial judge to find that once the plinth was painted black, other patrons had stumbled or tripped on it.

No contributory negligence by Mr Bretz

The TCA complained that there should have been a finding that Mr Bretz was contributorily negligent because he was not looking where he was walking. The basis of the TCA’s complaint was that Mr Bretz’s own evidence suggested a cavalier attitude on his part, because in cross-examination there was this exchange: ‘Did you watch where you were walking?– No. Take off and walk’.

The Court was satisfied that it was open to the judge at first instance to find that Mr Bretz’s conduct was ‘mere inattention’ and so, no finding of contributory negligence should follow. The Court was satisfied with the approach of the trial judge and observed the submission made on behalf of Mr Bretz that, ‘as a general rule, pedestrians are not obliged to watch their feet to avoid unexpected obstructions as they walk’.

Dismissal of third party proceedings 

The TCA had a contract with TFA who designed the plinth. The contract contained an exclusion clause in favour of TFA which read:

‘After the expiration of one (1) year from the date of the invoice in respect of the final amount claimed by [the TFA] pursuant to clause 4, [the TFA] shall be discharged from all liability in respect of the services whether under the law of contract, tort or otherwise.’

The TCA alleged that if the plinth was a tripping hazard, it was because it had been negligently designed by the TFA. The trial judge found that the TFA was protected from liability by operation of the exclusion clause. On appeal, the TCA argued that the TFA should be liable because:

(1) there was no evidence that the period of one (1) year in the exclusion clause had expired;

(2) the TFA failed to ensure, through inspection, that the plinths were constructed in accordance with their design and this amounted to a breach of contract;

(3) the TFA’s liability did not arise ‘in respect of the services provided under the contract’ and therefore fell outside of the exclusion clause.

The Court dismissed the TCA’s complaint about the third party proceedings noting that this was not the TCA’s case at trial, that the TCA’s complaint was clearly ‘in respect of the services’ that had been contracted from TFA and finding that the exclusion clause operated to protect TFA from liability. There was no basis to doubt the trial judge’s finding that the one (1) year period under the exclusion clause had expired.

Considerations

This judgment will be of interest to business owners. In answer to the question of what a trip hazard is, some take away points from this case are that, in the context of a personal injury claim, a trip hazard might be one which has some of the following features:

(1) it is ‘high enough to trip someone, but not so high to be immediately apparent’;

(2) it is camouflaged by surrounding surfaces;

(3) it is hard to spot because of the presence of other objects;

(4) it has caused others to slip or trip on it;

(5) has been identified as a risk already by the occupier.

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Kate DenningWhat is a trip hazard?
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Employer liable for injuries to worker riding pallet jack like a scooter

Cincovic v Blenner's Transport Pty Ltd [2017] QSC 320

Employer liable for injuries to worker riding pallet jack like a scooter

Case note: Cincovic v Blenner’s Transport Pty Ltd [2017] QSC 320

A recent decision of the Supreme Court of Queensland serves as a warning to employers with mobile equipment such as pallet jacks to instruct workers appropriately and in a variety of ways (e.g. with policies, signage, direct instructions).

The Facts

In March 2014, the Plaintiff suffered compression fractures to his spine following a fall from a pallet jack at the Defendant’s depot at Darra, Queensland. The Plaintiff was employed by the Defendant as a truck driver.

The incident was captured on CCTV. The Plaintiff was riding the pallet jack like a scooter, using one leg to push it several times and then placing a leg on each tyne as the pallet jack moved forward towards his truck. Another employee (Starling) approached the Plaintiff from behind, ran towards him, and pushed one of the tynes of the pallet jack with his foot. The Plaintiff fell backwards and hit his head and back on the concrete floor.

The Plaintiff was provided with training, including a Code of Conduct which specified that there was to be no horseplay or skylarking in the workplace. The Court accepted that workers did, on occasion, ride the pallet jack like a scooter.

The Issues

In relation to liability, the issues in dispute included:

  • whether the Plaintiff’s injuries arose from the Defendant’s breach of duty of care or breach of contract;
  • whether the Defendant was vicariously liable for the acts of Starling, who pushed the tyne with his foot;
  • if the Plaintiff was contributorily negligent.

The Judgment

Justice Boddice held that the Defendant did provide certain training to the Plaintiff but failed to instruct workers not to ride the pallet jack like a scooter or provide any signage to that effect. However, the Plaintiff failed to establish that the Defendant was directly liable for his injuries. There was no evidence from the Plaintiff that he would have complied with an instruction from the Defendant (not to ride the pallet jack like a scooter).

However, the Defendant was found vicariously liable for the acts of Starling. It was the Defendant’s case that it should not be liable for the spontaneous act of Starling kicking the tyne. It was put to the Plaintiff that he was racing Starling prior to the incident. The Plaintiff denied this. The Court was satisfied that the Plaintiff was not skylarking with Starling at the time.

In finding the Defendant vicariously liable, the Court noted that while the acts of Starling were unauthorised:

  • Starling’s actions were in the course of his employment, on the floor of the depot between fellow workers in the context of the pallet jack being transported from one section of the depot to another;
  • Starling’s actions were not designed to deliberately harm the Plaintiff or damage the Defendant’s equipment;
  • it would not be unjust or unfair to hold the Defendant responsible for Starling’s actions;
  • the act of pushing the pallet jack could be seen as one taken to move the pallet jack to its desired location.

The Court was not satisfied that there was any basis for a finding of contributory negligence on the part of the Plaintiff.

The Plaintiff succeeded on liability and was awarded damages of $874,669.

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Kate DenningEmployer liable for injuries to worker riding pallet jack like a scooter
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Joyriding passenger fails in claim against driver of stolen vehicle

Case note: Captain v Wosomo [2017] QSC 86

One recent decision of the Queensland Supreme Court is a warning to Plaintiffs who seek damages for injuries suffered while engaged in criminal behaviour – you claim may be doomed to failure.

The Facts

In February 2013 four boys stole a Toyota Hilux for a joyride in Townsville. The Plaintiff (then aged 14) was a passenger in the vehicle and the Defendant (then aged 16) was the driver.

At least one of the passengers in the vehicle yelled at the driver to slow down just before the Defendant lost control of the vehicle at an intersection.  At this time, the vehicle was traveling between 80 and 90 km/h.  The vehicle crashed into a light pole and the Plaintiff suffered severe head injuries.  The Plaintiff and other boys in the vehicle were not wearing seatbelts at the time of the crash.

The Plaintiff’s guardian brought a claim on his behalf in accordance with the Motor Accident Insurance Act 1994 (Qld) against the driver of the stolen car.

The Issues

The trial concerned liability only. The issues in dispute included:

  • whether the Defendant owed the Plaintiff a duty of care;
  • whether the Plaintiff was engaged in conduct that was an indictable offence at the time of the crash for the purposes of section 45 of the Civil Liability Act 2003 (Qld);
  • whether it would be harsh and unjust to deprive the Plaintiff of an award of damages under section 45(2);
  • whether there was a voluntary assumption of risk by the Plaintiff;
  • whether the Plaintiff had engaged in a dangerous recreation activity;
  • whether the Plaintiff had been contributorily negligent by failing to wear a seatbelt.

The Judgment

Justice Daubney held that the Plaintiff was jointly complicit in the stealing of the vehicle. Counsel for the Plaintiff argued that he withdrew from the criminal enterprise when he yelled at the driver to stop. This argument was not accepted by the Court as the yelling was an attempt to stop the driver speeding but was not an attempt to withdraw from the ongoing theft of the vehicle.  The facts of this case were distinguished from the High Court’s decision in Miller v Miller (2011) 242 CLR 446, where the Plaintiff had made clear and repeated requests to get out of a stolen vehicle.

Justice Daubney held that to demonstrate withdrawal from a joint illegal enterprise, the Plaintiff would have to establish:

  • something more than mere mental change of intention; and
  • timely communication of the withdrawal; and
  • that he took such action as he could reasonably take to undo the effect of his previous encouragement or participation,

and, he could not do so.

In this case, the ongoing criminal activity at the time of the crash and the Plaintiff’s failure to withdraw from that conduct led the Court to conclude that the Defendant did not owe the Plaintiff a duty of care. Accordingly, the Plaintiff was unsuccessful.

Criminal conduct

The judgment also addressed the application of section 45 of the CLA to the claim. Section 45 of the CLA states:

‘(1) A person does not incur civil liability if the court is satisfied on the balance of probabilities that-

(a) The breach of duty from which civil liability would arise, apart from this section, happened while the person who suffered harm was engaged in conduct that is an indictable offence; and

(b) The person’s conduct contributed materially to the risk of the harm.

(2) Despite subsection (1), the court may award damages in a particular case if satisfied that in the circumstances of the case, subsection (1) would operate harshly and unjustly.’

Although it was not necessary to make findings in relation to section 45, Justice Daubney held that:

  • The suffering of personal injury was a reasonably foreseeable consequence of the illegal conduct in which the Plaintiff was a participant – i.e. the unlawful use of the vehicle;
  • The Plaintiff materially contributed to the realisation of that risk. He was an active participant in the actual stealing of the vehicle, and went along for the joyride;
  • The Plaintiff’s damages should otherwise be reduced in accordance with section 45(3), on account of the Plaintiff’s conduct, by 50%.

Voluntary assumption of risk

Although it was not necessary to rule on this point, his Honour rejected the defence’s argument that the Plaintiff had voluntarily assumed the obvious risk of joyriding in a stolen car. Justice Daubney noted that this defence rarely succeeds and that the Defendant would be unable to demonstrate that the Plaintiff freely and voluntarily agreed to incur the risk.

Dangerous recreational activity

His Honour stated that he ‘would have been loathe to find that s 19 is applicable in the current case’ and given the specific application of the section 45 defence, the Court took the view that its application excluded a finding that the Plaintiff was engaged in a dangerous recreational activity.

Failure to wear a seatbelt

In further obiter, Justice Daubney accepted the medical evidence that it would not have been possible for the Plaintiff to sustain the head injuries he suffered, if he had been wearing a seatbelt.  His Honour was satisfied that the Plaintiff was therefore contributorily negligent, although the Court was not required to rule on this point as the Defendant owed no duty of care to the Plaintiff.  His Honour said that if a duty of care were owed to the Plaintiff, he would have reduced the damages awarded to the Plaintiff by 65% because of both the contributory negligence of the Plaintiff (15%) and the criminal conduct that the Plaintiff was engaged in (50%).

Considerations

This decision will be of interest to parties involved in claims for ‘harm’ involving criminal conduct.

The judgment is the first reported Queensland case to consider the application of section 45 in the context of a passenger injured during the unlawful use of a vehicle. It case will be of particular interest to compulsory third party insurers.

It is clear from this decision that it will be difficult for plaintiffs travelling in stolen vehicles to establish that a duty of care is owed to them. And if they can, they will be faced with a section 45 defence and any other defences available to the compulsory third party insurer.

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Kate DenningJoyriding passenger fails in claim against driver of stolen vehicle
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Fatigue Case | Plaintiff recovers $1.25M in Queensland journey claim

Case note: Kerle v BM Alliance Coal Operations Pty Ltd [2016] QSC 304

In the case of Kerle v BM Alliance Coal Operations Pty Ltd, the Supreme Court of Queensland considered the issues of work related fatigue, the duty of a mine operator to a worker and the question of whether a labour hire worker could be a servant of its host employer pro hac vice (for one occasion only), allowing the labour hire employer to shift responsibility for a worker to their host employer.

The doctrine of pro hac vice has the effect of deeming that someone is an employee of a company using the services of the person ‘for the time being’ or ‘for the occasion’. In negligence and workers’ compensation cases, successfully arguing pro hac vice will see an employer transfer their responsibility for a worker to another party. However, as this case illustrates, there is a heavy burden upon an employer who attempts to shift responsibility for a worker.

The Facts

Kerle was an employee of Axial HR Pty Ltd (Axial), a labour hire firm.  He was as a dump truck operator at the Norwich Park Mine near Dysart in Central Queensland.  His host employer was HMP Constructions Pty Ltd (HMP). BM Alliance Coal Operations Pty Ltd (BMA) was the mine operator.

In October 2008, at the end of four overnight 12-hour shifts, Kerle began driving to his home in Monto (more than 400 km away from the mine) and apparently fell asleep at the wheel some 300 km into his journey.  At the time of the accident, Kerle had been awake for 17 to 19 hours. Kerle’s vehicle swerved onto the right-hand of the road, hit a rail and then a concrete wall, resulting in significant injuries to Kerle, including a brain injury.

Kerle brought claims in negligence against Axial, HMP and BMA; on the basis that each company owed him a duty of care that had been breached.

The Issues

At trial, the Court considered issues such as:

  • fatigue and the other factors which could possibly have led to the accident;
  • whether Kerle was contributorily negligent, by starting or continuing the journey without sufficient rest;
  • which of the Defendants owed a duty of care to Mr Kerle;
  • how damages should be apportioned between those Defendants.

The Judgment

Justice McMeekin recognised that Kerle was an honest witness but that there were significant evidentiary problems with Kerle’s evidence because of his fatigue at the time of the accident and the head injuries he suffered.  However, the Court ultimately decided in his favour and awarded damages against his employer as well as against HMP and BMA.

Kerle’s employer, Axial, argued that Kerle was under the ‘effective control and supervision’ of HMP, and that HMP was therefore the employer pro hac vice.  In rejecting this argument, Justice McMeekin referred to the English case of Mersey Docks Harbour Board v Coggins & Griffiths (Liverpool) Ltd noting that the burden of proving an entity is an employer pro hac vice is very difficult and ‘can only be discharged in exceptional circumstances’, where the ‘entire and absolute control’ over the employee had passed to the second employer.  Justice McMeekin found that, in Kerle’s case, entire and absolute control had not passed from Axial to HMP, and that HMP was therefore not the employer pro hac vice.  The facts relied upon by His Honour in arriving at this decision were that:

  • the Plaintiff’s employment required him to report to both a site supervisor of HMP and Axial, providing him with the contact details for both;
  • it was a condition of his employment that he contact an Axial supervisor if he was unable to work on a particular day or if he was injured;
  • the Plaintiff was required to comply with Axial’s code of conduct while on site or at accommodation provided by the client; and
  • it was the, ‘policy of Axial to monitor and control the fatigue levels of employees at work, particularly when working extended hours’.

The Court found that responsibility for Mr Kerle’s injuries should be apportioned between Axial, HMP and BMA, to the Defendants as follows:

  • 36% (to Axial – employer);
  • 54% (to HMP – host employer); and
  • 10% (to BMA – mine operator).

The Court awarded damages to Kerle in the sum of $1.25M.

BMA’s Duty of Care

One significant aspect of the judgment was the finding that BMA, the mine operator, owed a duty of care to the Plaintiff.

His Honour found that it was not appropriate to limit consideration of whether a duty of care was owed to the usual circumstances in which a duty might be owed by a principal to an independent contractor (as per Stevens v Brodribb Sawmilling Co Pty Ltd or Leighton Contractors Pty Ltd v Fox), because:

  • The risk of personal injury in Stevens arose from the organising of activities between different contractors and that was not the risk here;
  • The Plaintiff was not injured when carrying out a specialised task that fell within the expertise of HMP or Axial;
  • BMA had detailed knowledge of the safety issues surrounding managing workplace fatigue; and
  • The risk did ‘not arise from the physical exigencies of the workplace or directly from the manner in which the work was performed by either Axial’s employees or any other contractor’. BMA brought the risk into being by its insistence on the consecutive 12-hour night shifts. And otherwise, statements of principle by Justices Brennan and Mason in Stevens, supported the imposition of a duty where the principal created the risk.

Taking into account these matters, including the features of the relationship between the Plaintiff and BMA, the Court was satisfied that BMA owed the Plaintiff a duty of care.

Contributory Negligence

Justice McMeekin accepted that fatigue was the most likely cause of the accident and rejected the Defendants’ argument that Kerle was contributorily negligent.  In doing so, the judgment addressed the allegations of the Defendants on contributory negligence, finding most notably:

  • There was no specific instruction by the Defendants to Kerle not to operate a vehicle when fatigued;
  • Kerle was not aware that he could use the accommodation at the site to rest after he had completed his last shift;
  • Kerle’s decision to embark upon the drive knowing that he had not rested and after completing his fourth consecutive night shift, illustrated his lack of understanding about fatigue.

Considerations

Principally, Kerle’s case is significant because it is one of a small number of Australian decisions which has considered workplace fatigue and related system failures in recent years. It will be of interest to employers and businesses operating in a number of industries (e.g. mining, oil & gas, transport) where workers travel for extended periods or, work long consecutive shifts on a FIFO basis. The case may also be of interest to compulsory third party insurers.

Secondly, it reinforces established law that employers, such as labour hire companies who provide labour to other companies, will not find it easy defend a claim on the basis that the employee was a servant pro hac vice of another entity.

And finally, it is of interest because the mine operator was found to have owed the Plaintiff a duty of care. This finding will be of particular interest to parties involved in multi-party disputes in mining, construction, oil & gas and infrastructure.

A full copy of the Court’s decision can be downloaded here.

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Kate DenningFatigue Case | Plaintiff recovers $1.25M in Queensland journey claim
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Pool tragedy caused by failure to warn of diving danger

Pool tragedy caused by failure to warn of diving danger

Case note: Lennon v Gympie Motel [2016] QSC 315

The Supreme Court of Queensland found the Gympie Motel 85% liable for injuries suffered by a girl who was rendered tetraplegic after diving into the Motel’s pool. The decision (delivered on 22 December 2016) is a timely reminder that businesses with pools and swimming facilities must take appropriate care for the safety of users. The judgment may also be used as a guide for businesses when considering the types of signage to display to adequately warn entrants of a risk of injury from diving.

The accident happened in 1998, when the girl was aged 12.

The Facts

On 21 February 1998, Karla Lennon, her mother and siblings stayed at the Motel. The family had not stayed there before.

The Motel had an in-ground pool. The pool was 10 metres by 5.2 metres, with an internal width of 4.5 metres. Its depth went from 0.9 metres to 1.74 metres. The pool was fenced.

There was a sign on the gate to the pool area which read:

‘Pool Rules

All children must be under adult supervision at all times, in pool area.’

On arriving at the Motel, Karla’s younger sister Letitia asked their mother if she could go swimming. The mother agreed and told Letitia that Karla would be in charge.

Letitia recalled that she and Karla were jumping in from different areas around the pool and gliding, to see how far they could each glide along. Letitia recalled other people present in the jacuzzi area of the pool and had a conversation with one of the people.

At one point a man said to Letitia, ‘…your sister is over there and she’s floating…’. Letitia told the man that Karla had done this before and that she was just playing a joke. The man left the pool area. Letitia realised that Karla was not responding. Emergency services attended. Karla suffered a ‘hypoxic brain injury secondary to immersion due to a cervical spine injury’.

Letitia (who was 7 years of age at the time) gave evidence about the circumstances leading up to the incident at the trial. There was no direct evidence at trial about the incident. Karla had no recollection of the event.

The Plaintiff’s Case

It was Karla’s case that:

(1) she knew not to dive into shallow water or pools in which she could not judge the depth;

(2) she intentionally dived into the pool, striking her head, and did not appreciate the depth of the pool;

(3) the Motel failed to warn her about the depth of the pool by having a ‘no diving’ sign or depth markers, or both;

(4) if the Motel had erected signage, warning users of the pool as to either its depth or that diving was prohibited, Karla would not have dived into the pool.

The Defendant’s Case

It was the Motel’s case that:

(1) there was insufficient evidence for the Court to conclude how Karla’s injuries occurred;

(2) the absence of depth markers or a no diving sign did not constitute a breach of duty because of the obviousness of the risk of diving into the pool;

(3) Karla was outgoing, oppositional and, even if a no diving sign or depth marker were present, she would have done exactly what she did;

(4) the foreseeability of any risks of injury were adequately addressed by the sign requiring adult supervision;

(5) Karla contributed to her own injuries.

The Judgment

Both parties led evidence about Karla’s character. The Court ultimately accepted submissions made on Karla’s behalf, that she was a responsible and mature child. In arriving at this conclusion, the Court took into account that:

(1) Karla had previously travelled by train, bus and water taxi to Stradbroke Island for 2 years prior to the incident, every weekend, during the school term and, without adult supervision;

(2) Karla worked in her mother’s second-hand store, serving customers, for up to three to four hours;

(3) Karla would travel with her father, who owned a trucking and logistics business, and she would take messages and write cheques; and

(4) Karla’s friend’s mother allowed Karla and her daughter to swim, unsupervised, at the beach.

The Court was satisfied, on the balance of probabilities, that Karla’s injuries were in fact caused by her diving into the pool and striking her head on the bottom of the pool. In arriving at this conclusion, the Court relied heavily upon the opinion of Dr Tuffley, who considered it was ‘highly probable, and certainly more probable than not’, that this was the cause of Karla’s injury.

The Court accepted that if the Motel had displayed a no diving sign, that Karla would have obeyed that warning. This was despite the fact that it was Karla’s evidence that she would have obeyed an instruction from her mother not to dive into the pool. Having regard to her character, the Court did not consider it was unreasonable for Karla not to be supervised by her mother in the pool.

The Court found that the duty of care owed by the Motel to Karla extended to take care for the safety of the persons using the pool and that the Motel breached its duty of care by failing to take the precautions (of displaying a no diving sign or a depth marker, or both) to warn guests who may misjudge the depth of the pool. Displaying the adult supervision sign did not discharge the Motel’s duty to the Plaintiff in this instance. The Court had regard to Australian Standards which state that, ‘[u]nless specifically designed for diving, private pools should not be used for that purpose’ and accepted the Plaintiff’s submission that there was no safe place to dive in the pool.

A deduction of 15% was allowed for the Plaintiff’s own negligence, having regard to the fact that while she was found to have dived in the deeper area of the pool and had been diving safely into the pool without incident for 10-15 minutes beforehand, she had a general awareness of the dangers associated with diving.

Considerations

This judgment will be of interest to pool owners and businesses with swimming facilities. The decision may be used as authority for the kinds of precautions that may be reasonably required of a commercial facility to address the risk of people diving into shallow water. However, it should not be taken as authority for the proposition that an absence of parental supervision will be superseded by an owner’s failure to warn of risks. The disposition of the Plaintiff was a key feature of the judgment in this case. There have been changes in the law since this incident occurred and similar circumstances, with a Plaintiff of a different maturity level, could produce a different result.

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Kate DenningPool tragedy caused by failure to warn of diving danger
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Interstate Insurers and the National Injury Insurance (Qld) Act 2016 (Qld)

Interstate Insurers and the National Injury Insurance (Qld) Act 2016 (Qld)

National Injury Insurance Scheme – National Injury Insurance Scheme Act – National Injury Insurance Scheme Queensland – National Injury Insurance Scheme Levy – NIIS NDIS – NIIS Qld – CTP Insurance Law – CTP Insurance Lawyer – Motor Accident Insurance Act – Motor Accident Insurance Commission Qld – Motor Accident Insurance Regulation

Background

As of 1 July 2016, Queensland has a no-fault scheme for treatment, care and support for eligible persons who suffer serious personal injury caused by, through or in connection with the:

  • driving;
  • collision, or action to avoid a collision;
  • running out of control; or
  • defect causing loss of control,

of a prescribed vehicle, within Queensland.

The National Injury Insurance (Qld) Act 2016 (Qld) (NIISQA) was introduced to meet Queensland’s obligation to address the agreed federal benchmarks for the provision of treatment, care and support to persons involved in road accidents who suffer serious personal injury. The NIISQA does not affect the common law rights of Claimants for at-fault compulsory third party claims. However, the meaning of the term ‘insurer’ under the NIISQA will see the legislation operate differently in claims against interstate compulsory third party (CTP) insurers (Interstate Insurers), compared with claims against Queensland licensed insurers.

The NIISQA will be administered by the National Injury Insurance Agency, Queensland (Agency).

Meaning of ‘insurer’

The dictionary in the NIISQA defines certain words used in the Act.

The word ‘insurer’ is a word that is defined. Under the NIISQA:

insurer means an insurer under the statutory insurance scheme under the [Motor Accident Insurance Act 1994 (Qld)].’

The Motor Accident Insurance Act 1994 (Qld) (MAIA) defines the statutory insurance scheme as, ‘the insurance scheme established by [the] Act’: section 4.

Several sections in the MAIA refer to the ‘statutory insurance scheme’.  Those sections concern such matters as:

  • the obligations of licensed insurers;
  • the statutory insurance scheme levy;
  • the industry deed;
  • the functions of the Motor Accident Insurance Commission; and
  • premium rates,

and other matters that are of no consequence to Interstate Insurers.

Interstate Insurers are not, ‘insurers under the statutory scheme under the [MAIA]’.  The Transport Accident Commission (Vic) is the insurer under the statutory scheme under the Transport Accident Act 1986 (Vic).  The Territory Insurance Office (NT) administers the Motor Accidents Compensation (MAC) Scheme under the Motor Accidents (Compensation) Act 1979 (NT).  The Motor Accident Insurance Board (Tas) administers the funding and payment under Tasmania’s scheme.

While claims for damages against these Interstate Insurers are regulated by the pre-court procedures of the MAIA, those Interstate Insurers are ‘insurers’ under their own schemes; with their own statutory policies of insurance.

When an Interstate Insurer is an ‘insurer’ under the NIISQA

Under section 32AA of the Acts Interpretation Act 1954 (Qld) (AIA) a definition in an Act applies to an entire Act.  However, under section 32A of the AIA, a definition in an Act applies except so far as the context or subject matter otherwise indicates or requires.

So, if the context or subject matter of a particular section or part of the Act requires; the term ‘insurer’ could be interpreted to mean Interstate Insurers.

Section 102 is an example of a provision which requires that the word ‘insurer’ be a reference to Interstate Insurers. Under section 102, the Agency may recover, as a debt, the present day value of a participant’s future treatment, care and support from the ‘insurer’ under an interstate CTP policy of a vehicle at-fault.

A comparison between sections 42 and sections 102 of the Act, shows that the word ‘insurer’ has taken on two meanings within the Act. Section 42 provides that the Agency may be liable to contribute to the liability of an ‘insurer’. It could not have been Parliament’s intention for the Agency to be obliged, on the one hand, to contribute to the liability of an Interstate Insurer and, on the other, entitled to seek recovery from them.

Claims involving Interstate Insurers

Apart from under section 102, the word ‘insurer’ under the NIISQA does not appear to extend to Interstate Insurers. This does not detract from the obligation of the Agency to pay for the treatment, care and support of participants under the NIISQA.

With the word ‘insurer’ under the NIISQA limited to licensed insurers, the Agency has no obligation to contribute towards the liability of Interstate Insurers, against which common law claims are made. Accordingly, Claimants may pursue those Interstate Insurers for the total of their damages (apart from amounts already paid by the Agency) in the usual way. However, the Agency is authorised to pursue Interstate Insurers for recovery of the present day value of any future treatment, care and support required by the Claimant.

Interstate Insurers will need to consider their liability for common law damages in Queensland claims and statutory entitlements (including those under their own schemes) in the context of the NIISQA, the MAIA and any local legislation or policy applying to the vehicles registered interstate which they insure. Lawyers for Claimants will need to provide different advice to their clients as to the process under the Act, depending on the identity of the Insurer.

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Kate DenningInterstate Insurers and the National Injury Insurance (Qld) Act 2016 (Qld)
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InDefence covers legal and technical issues in a general way. Changes in circumstances or the law may affect the completeness or accuracy of the information published. InDefence is not designed to express opinions on specific cases, to provide legal advice or to establish a relationship of client and lawyer between Denning Insurance Law and the reader, or any third party. No person should act or refrain from acting solely on the basis of this publication. You should seek legal advice particular to your circumstances before taking action on any issue dealt with in this blog.