Kate Denning

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Kate Denning

Kate Denning is the Founder & Principal of Denning Insurance Law. Kate is an Accredited Specialist in Personal Injuries (Qld) and 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 17 years. Her passion for delivering great results, approachable manner and breadth of experience, set her apart from her competitors.

Liability arising from progress payment covered by insurance

Liability arising from progress payment covered by insurance

Claim for progress payment – Progress Claim Construction – D&C Construction – D&O Policy – Contract Management

Case note: Chubb Insurance Company of Australia Pty Ltd v Robinson

This was an appeal by Chubb Insurance Company of Australia Pty Ltd (Chubb) to the Full Court of the Federal Court of Australia (Court). The decision of the Court concerned a preliminary issue in the case.

Mr Glenn Robinson who was employed by Reed Constructions Australia Pty Ltd (Contractor) as its Chief Operating Officer (COO) sought cover under the Contractor’s D&O Policy. Mr Robinson sought cover for his role in procuring a progress payment on behalf of the Contractor, under a design and construct contract (D&C Contract).

The Facts

In 2010, the Contractor and 470 St Kilda Road (Principal) entered into a D&C Contract for a construction project known as the ‘Leopold Project’ at 470 St Kilda Road in Melbourne.

The Contractor held a directors and officers liability policy (D&O Policy) with Chubb. Mr Robinson was an Insured under the D&O Policy.

In December 2011, the Principal asked the Contractor to provide a Statutory Declaration signed by Mr Robinson, to support the Contractor’s claim for a progress payment under the D&C Contract. Mr Robinson executed a Statutory Declaration. A progress payment was then made by the Principal to the Contractor.

The Contractor is in liquidation. The Principal commenced proceedings against Mr Robinson in 2012 claiming that:

  1. Mr Robinson did not have a reasonable basis for making the Statutory Declaration submitted in support of the progress payment.
  2. Mr Robinson engaged in conduct that was likely to mislead or deceive and acted negligently.

Mr Robinson sought indemnity under the Contractor’s D&O Policy.

The D&O Policy

Insuring clause

The D&O Policy contained the following insuring clause relating to liability cover for Insureds:

‘Executive Liability Coverage

The Company shall pay, on behalf of each Insured Person, Loss for which the Insured Person is not indemnified by an Organisation on account of any Executive Claim first made during the Policy Period or, if exercised, during the Extended Reporting Period, for a Wrongful Act occurring before or during the Policy Period.’

Exclusion clause

The D&O Policy contained an exclusion clause which read:

‘(A) Exclusions Applicable to All Insurance Clauses 

The Company shall not be liable for Loss in respect of any Claim:

Professional Services  

(v) for any actual or alleged act or omission, including but not limited to any error, misstatement, misleading statement, neglect, or breach of duty committed, attempted or allegedly committed or attempted in the rendering of, or actual or alleged failure to render any professional services to a third party.’

Chubb denied indemnity under the D&O Policy, relying upon this exclusion clause.

The Findings

At first instance, the Federal Court found that the exclusion clause did not operate to allow Chubb to exclude cover under the D&O Policy because:

  1. Mr Robinson’s conduct in signing the Statutory Declaration and procuring payment was ‘project management services’.
  2. Chubb did not establish that project management was a ‘profession’ as at 2010 or 2011. So it was not a ‘professional service’ for the purposes of the exclusion clause.

Chubb appealed the Federal Court’s decision. In the appeal judgment dated 26 February 2016, the Court agreed that project management was not a profession as at 2010 or 2011. However, the Court also found that it did not constitute the rendering of any service by either Mr Robinson or the Contractor. Rather, it was an act done in the course of proper discharge of the Contractor’s contractual obligations to the Principal. The Court was satisfied Mr Robinson’s conduct fell within the insuring clause.

Accordingly, the Court refused the appeal by Chubb because the conduct of Mr Robinson was not a professional service for the purposes of the exclusion clause.

Considerations

The outcome in this case turned on the wording of the D&O Policy, the case pleaded against Mr Robinson and the exclusion relied upon by the insurer.

However, it’s a decision that should be welcomed by insureds and principals. It illustrates the need for parties, insurance brokers and lawyers to identify when an insurance policy might respond to a contractual dispute.

BOOK A FREE CONSULTATION for advice and information about your D&O policy, by calling (07) 3067 3025 or contact us online.

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Kate DenningLiability arising from progress payment covered by insurance
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Dangerous Recreational Activities | Contract Claims & Intentional Torts

Dangerous Recreational Activities | Contract Claims & Intentional Torts

Dangerous Recreational Activities – Dangerous Recreational Activities Qld – Dangerous Recreational Activities Civil Liability Act – Dangerous Recreational Activities CLA – Dangerous Recreational Activities Cases – Dangerous Recreational Activities Examples – What is a dangerous recreational activity? – Duty of Care Legislation Qld

What is a dangerous recreational activity?

Section 18 of the Civil Liability Act 2003 (Qld) (CLA QLD) defines a dangerous recreational activity as:

‘an activity engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to a person’.

Civil Liability Act 2003 (Qld)

The CLA QLD limits the ability of injured Plaintiffs to recover damages in negligence for personal injuries that arise out of dangerous recreational activities.

Under section 19 of the CLA QLD, a person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by a person.

Section 17 of the CLA QLD states:

’17  Application of div

This division applies only in relation to liability in negligence for harm to a person resulting from a dangerous recreational activity engaged in by the plaintiff.’

But proving that a Plaintiff was engaged in a dangerous recreational activity under the CLA QLD isn’t always straightfoward. A decision of the Supreme Court of Queensland last year highlighted an issue for Defendants seeking to raise the defence.

Ireland v B & M Outboard Repairs

In Ireland v B& M Outboard Repairs [2015] QSC 084, the Defendants argued that the Plaintiff was engaged in a dangerous recreational activity.

The Court rejected the Defendant’s submission that section 19 of the CLA QLD applied; principally, because the activity did not involve an obvious risk. However, the Court made an additional comment that section 19 would not apply because section 17 refers to liability in negligence only and not, to an action for breach of contract.

Liability in Negligence

Unlike the Civil Liability Act NSW (2002) (CLA NSW), the CLA QLD does not define the word ‘negligence’.

Without a definition, one might assume the phrase ‘liability in negligence’ means an action in negligence and not, an action in contract or, an intentional tort. In the first reading speech for the Civil Liability Bill 2003 (Qld), Parliament said that the dangerous recreational activities provisions would change the ‘conventional law of negligence’ – as opposed to the law of contract or, the law of torts.

Considerations

Plaintiffs may frame their claims to avoid the dangerous recreational activity defence under the CLA QLD. However, the interpretation of section 17 is yet to be judicially determined. The comments in Ireland were in obiter. That said, if Ireland’s reasoning is applied, Defendants will not be assisted by section 19 of the CLA QLD against a claim in contract.

Parties to claims involving recreational activities which may be ‘dangerous’ may wish to consider the following:

  • the application of the obvious risk provisions under the CLA QLD
  • any contract between the parties
  • whether the contract between the parties was for the dangerous recreational activity itself (compared with transportation or equipment hire)
  • the application of Commonwealth legislation such as the Competition and Consumer Act 2010 (Cth) to the claim
  • any defects or flaws in equipment in use
  • signage, advertising and manufacturers specifications or notifications
  • facts suggesting an intentional tort
  • insurance coverage issues arising from an action in contract against the Defendant or an intentional tort

BOOK A FREE CONSULTATION for advice and information about a personal injury matter by calling (07) 3067 3025 or contact us online.

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Kate DenningDangerous Recreational Activities | Contract Claims & Intentional Torts
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Section 54 Insurance Contracts Act – what’s not an ‘act’?

Section 54 of the Insurance Contracts Act – what’s not an ‘act’?

Section 54 Insurance Contracts Act – Section 54 Insurance Contracts Act Summary – Section 54 ICA – Maxwell v Highway Hauliers Pty Ltd

Case note: Allianz Insurance Ltd v Inglis [2016] WASCA 25

This was an appeal by Allianz Insurance Ltd (Allianz) to the Court of Appeal (WA) (Court). The case concerned a preliminary question about the application of section 54 of the Insurance Contracts Act 1984 (Cth), based on an agreed set of facts.

The question to be decided was whether, on the proper construction of an Allianz Sure Cover Plus home insurance policy (Allianz Policy), Allianz was required to indemnify its Insureds for their liability to the Defendants.

The Insureds succeeded at District Court level. Our summary of that decision is here. Allianz sought leave to appeal that decision to the Court of Appeal (WA) (Court).

Section 54 Insurance Contracts Act

Section 54 of the Insurance Contracts Act 1984 (Cth) states:

‘(1)  Subject to this section, where the effect of a contract of insurance would, but for this section, be that the insurer may refuse to pay a claim, either in whole or in part, by reason of some act of the insured or of some other person, being an act that occurred after the contract was entered into but not being an act in respect of which subsection (2) applies, the insurer may not refuse to pay the claim by reason only of that act but the insurer’s liability in respect of the claim is reduced by the amount that fairly represents the extent to which the insurer’s interests were prejudiced as a result of that act.

(2)  Subject to the succeeding provisions of this section, where the act could reasonably be regarded as being capable of causing or contributing to a loss in respect of which insurance cover is provided by the contract, the insurer may refuse to pay the claim.’

The Facts

The Plaintiff, Ms Georgia Inglis (Georgia) (aged 10) alleges that she was run over by a ride-on lawnmower operated by the First Defendant, Mr Stephen Sweeney (Stephen) (aged 11).

Georgia is the daughter of Mr Stuart Inglis and Mrs Linda Inglis (Georgia’s parents).  Mr Stuart Inglis owned the ride-on lawnmower.  Georgia lived with her parents.  Georgia’s parents were named insureds under the Allianz Policy.

It is alleged that on 17 October 2004, Mr James Inglis (James) (aged 12), Georgia’s brother, rode the lawnmower from Georgia’s parents’ house, to the Second and Third Defendants’ house.  The Second and Third Defendants are the parents of Stephen.

Stephen ran over Georgia in a game that involved Georgia being towed behind Stephen on the ride-on lawnmower. Georgia brought claims against the Defendants. The Defendants brought claims against Mr Stuart Inglis and Georgia’s brother, James (the Insureds).  The Insureds brought claims against Allianz, for indemnity under the Allianz Policy.

The Allianz Policy

Insuring clause

The Allianz Policy contained the following clause relating to cover for injury to other people:

‘… We will cover your legal liability for payment of compensation in respect of:

  • death, bodily injury or illness…’

Exclusion clause

The Allianz Policy contained an exclusion clause which read:

‘What you are not covered for:

  1. We will not cover your legal liability for: …
  2. injury to any person who normally lives with you, or damage to their property;’

Allianz denied indemnity under the Allianz Policy.

The Submissions

Allianz submitted that the expression ‘a person who normally lives with you’ did not contain or constitute an ‘act’ under section 54(1) but instead, was a state of affairs or, the status or description of a person.

It was the submission of the Insureds that the act must have occurred or (if continuous) be occurring at the time of the accident. The Insureds argued that this was mandated by the word ‘lives’ in the expression, ‘a person who normally lives with you’. The Insureds did not suggest any other ‘act’ engaged section 54(1).

The Findings

In the judgment dated 3 February 2016, the Court allowed the appeal by Allianz, finding:

  1. ‘Act’ means something done or being done by a person. It is different from a state of affairs or the result of an act. Assistance in understanding the distinction between these things may be drawn from criminal law.
  2. The fact that a ‘person normally lives with’ an insured does not constitute an ‘act’ within the meaning of section 54(1).

The Court rejected the argument by Allianz that the Insureds’ claims were in respect of liability of a kind not dealt with by the Allianz Policy.

Considerations

It remains difficult for insurers to establish that a relevant liability falls outside of the scope of cover under a policy.

However, the argument put forward by Allianz that an ‘act’ under section 54 of the Insurance Contracts Act 1984 (Cth) is not:

  • a state of affairs;
  • the status of a person;
  • the description of a person,

could be used in support of an insurer’s decision to exclude cover in a variety of circumstances.

BOOK A FREE CONSULTATION for advice and information about your insurance problem by calling (07) 3067 3025 or contact us online.

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Kate DenningSection 54 Insurance Contracts Act – what’s not an ‘act’?
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Professional negligence case against architects succeeds

Case note: Christian Education Ministries – Qld Ltd v Thomson Adsett Pty Ltd [2015] QDC 292

Professional negligence claims against architects – Architects, Engineers & Surveyors – Negligence – Breach of Contract – Professional Negligence – Architect’s Negligence Cases – Architect’s Negligence Examples – Liability Claims Examples

The Design Brief

Thomson Adsett Pty Ltd (Architects) were retained to provide architectural services for the construction of a new multi-purpose assembly hall/sports building (Hall) at the Australian Christian College Moreton at Caboolture (School).

The School claimed that it gave an express instruction to the Architects that the Hall was to have a full-sized basketball court. The dimensions of a full-sized basketball court are a minimum length of 32 metres, a minimum width of 19 metres and a minimum height of 7 metres.

The School claimed that it clarified with the Architects, on several occasions, that the Hall would contain a full-sized basketball court. However, conflicting instructions were given by the School’s principal, Mr Woodward and by the CEO of Christian Education Ministries, Mr Fyfe.

The Architects said that Mr Woodward told them that formal basketball games would not be played in the hall because the School only had 60 students from Prep to Year 12. The Architects said that the design was made to keep the cost of construction controlled for the School.

In an email to the Architects the CEO said the Hall should be, ‘large enough for an indoor volleyball or basketball game’. The drawing that was provided to the School had the words, ‘full-sized basketball court’ on it. However, the brief contained no reference to any affiliations, documents or specific use guidelines such as International Basketball Federation Basketball Rules 2008 Basketball Equipment or Basketball Queensland.

The Architects did not clarify their instructions from the School in writing.

The School used the plans designed by the Architects for the construction of the Hall by a builder. When the Hall was partly constructed, the School discovered that the height of the roof was only 4.4 or 4.2 metres. When the School discovered the problem, it instructed the Architects to redesign the roof, to increase the height to 7 metres, where the basketball court was to be located.

The Issue

The School’s case was that even if conflicting instructions were given to the Architects, the Architects breached their retainer or were negligent for failing to clarify the School’s instructions before making the design. There was no dispute that the Architects accepted that Mr Fyfe had authority to make decisions over the School’s principal, Mr Woodward.

The Expert Evidence

The School called Alan Jordan, Architect, as their expert at trial. Mr Jordan’s evidence was that critical factors are usually confirmed in writing by architects.  Mr Jordan’s evidence was that the Architects’ actions in failing to clarify the instructions from the School in writing, led to the School paying a premium to get what they had initially asked for.

The Architects called Scott Peabody, Architect, as their expert at trial. Mr Peabody’s evidence was that the Architects prepared plans that were consistent with the brief provided by the School. He also noted that there was no reference in the brief to industry specific guidelines concerning the specifications the basketball court should meet.

The Judgment

In a judgment delivered in the District Court on 26 November 2015, the Court found as follows:

  1. The School had given an express instruction to the Architects for the design to include a ‘full-sized basketball court’.
  2. Any comments made on behalf of the School to the effect that it would not play formal basketball games were superseded by the instructions from the CEO of the Christian Education Ministries, Mr Fyfe, that the School required a full-sized basketball court.
  3. The Architects failed to follow the express instructions given by the School.
  4. The Architects were negligent and breached their retainer. The Court awarded damages in favour of the School in the sum of $505,004, including interest of $138,738.04.

Considerations

Here, the School succeeded against the Architects because:

  • findings of fact about the instructions provided were resolved in favour of the School; and
  • the Architects could not effectively defend the case where they failed to clarify conflicting instructions of the School in writing, before making the design.

This case will be of interest to architects, engineers and surveyors, as well as those managing professional indemnity claims against these professionals.

For more information about professional indemnity claims and disputes, see our PROFESSIONAL NEGLIGENCE SERVICES.

BOOK A FREE CONSULTATION for advice and information about your professional negligence problem, by calling (07) 3067 3025 or contact us online.

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Kate DenningProfessional negligence case against architects succeeds
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Contributory negligence finding of 50% against pipeline worker

Case note: Kennedy v Queensland Aluminia Limited [2015] QSC 317

Contributory Negligence Cases Qld – Contributory Negligence Meaning – Contributory Negligence Workers Compensation – Contributory Negligence at Work – Contributory Negligence Accident at Work – Contributory Negligence WorkCover – Workers Compensation and Rehabilitation Act – Workers Compensation Lawyers for Employers – Workers Compensation Lawyers Qld – Employer Negligence – Employer Negligence Duty of Care

The Supreme Court of Queensland has made a finding of 50% for contributory negligence against a pipeline worker who suffered burns from caustic liquid after failing to follow the training and procedures of his employer.

The Facts

Mr Paul Kennedy (Plaintiff) brought a claim for damages against his employer, Queensland Aluminia Limited (Employer).

The Plaintiff was required to break open a vertical pipe and to replace a “blind” on a section of it. The pipe conveyed caustic solution. The Plaintiff was aware that if the pipe was not isolated effectively from the tank overhead, caustic could emerge from the pipe and it would cause severe burns if he came into contact with it.

The Plaintiff touched the pipe noting that it was hot and believed that it was “live” or “energised”. He closed the pump suction valve by turning a hex nut to what he thought was the closed position. He actually opened the valve. The hex nut was not marked to show when it was opened or closed.

The Plaintiff loosened three bolts on the flange at the base of the pipe where he intended to insert the blind. A “show of liquor” came from the open section of the flange at a steady pace and then the stream reduced to a dribble. He left the task for a break and returned to it half an hour later.

On return, no further caustic was coming from the pipe. He removed the rest of the bolts and while in a kneeling position the caustic shot out, striking him in the chest and face.

The Issue

The Court considered that there were two reasons why the incident occurred:

  1. The Plaintiff opened the pump suction valve instead of closing it.
  2. The Plaintiff did not prove isolation.

The Employer admitted liability for the claim but said that the Plaintiff was contributorily negligent for failing to prove isolation.

The Training

The Employer had a standard procedure for proving isolation. A witness for the Employer explained that in such a situation, a worker is expected to shut the suction valve and open the drain leg by removing the cap. The worker is to use a probe to probe the drain leg to get the flow. The worker is to then open the suction valve to witness the flow. When the flow has stopped, the worker has proved isolation.

The Plaintiff’s evidence at trial demonstrated an inconsistency between his understanding of how to prove isolation and the actual procedure the Employer required staff to follow. The Plaintiff simply turned off the suction valve and then proceeded to open the pipe. The Plaintiff believed that he should break into the pipe “to prove drainage”.

The Court was satisfied that the Plaintiff knew of the use that ought to have been made of the probe. It was set out in a documented tagging procedure. The Plaintiff had seen a power point slide relating to the procedure. A witness for the Employer said that the task the Plaintiff was undertaking was not complex and it was one that staff would be competent to perform after six months in the job. The Plaintiff had been working for the Employer for three years at the time of the incident. He had been promoted and had tag competencies.

The Judgment

In a judgment delivered on 18 November 2015 The Honourable Justice McMeekin found as follows:

  1. The Employer failed to ensure that there was an adequate system of marking the valves to ensure that an operator knew when they were opening or closing them.
  2. The Plaintiff had been adequately trained. He would not have been promoted and given tag competencies, if he was not completely familiar with the Employer’s procedures. He failed to follow instructions in proving the isolation of the system. He had no excuse for doing so. That involved a significant departure from safety procedures.
  3. The Plaintiff’s actions went well beyond “mere inadvertence, inattention or misjudgment”. The Employer’s system was intended to cater for a mistake. The possibility of a valve not being effective was at the heart of the Employer’s system. Had the Plaintiff done as he had been taught, the open valve would have been identified and the work not undertaken.
  4. Liability should be apportioned between the Employer and the Plaintiff 50/50.

His Honour also commented that it was “trite law” that the onus lies on an employer to establish contributory negligence.

Considerations

Here, the Employer established a significant reduction for contributory negligence despite:

  • pleading limited particulars of its case for contributory negligence; and
  • the fact that it could not call a witness who could claim to have directly taught the Plaintiff the procedures.

The case illustrates how important it is for employers and host employers to persist with allegations of contributory negligence where a worker has departed from the Employer’s documented safety procedures and training.

This case will be of particular interest to those working in industries involving isolation and tagging procedures – e.g. mining, gas, infrastructure.

BOOK A FREE CONSULTATION for advice and information about a personal injury matter by calling (07) 3067 3025 or contact us online.

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Kate DenningContributory negligence finding of 50% against pipeline worker
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No compensation for degenerative disc disease

Kirby v Blackwood (Workers’ Compensation Regulator) [2015] QIRC 184

Workers Compensation for Pre-Existing Condition – Workers Comp for Degenerative Disc – Workers Compensation for Back Pain – Workers Compensation for Back Injury – Workers Compensation Lawyers Qld – Workers Compensation Lawyers for Employers – Dispute Insurance Claim

The Queensland Industrial Relations Commission (Commission) has refused the appeal of a worker seeking compensation for degenerative disc disease.

The Facts

Ms Kaye Kirby (Appellant) underwent a spinal fusion to her L1 – L3 discs in 1991.

In about 2001, she started working for InvoCare Australia Pty Ltd (InvoCare) as a Funeral Manager. She told InvoCare about her pre-employment spinal surgery.

In 2010, she started to suffer back pain and in 2011, sciatica. The Appellant brought a common law claim for a back injury (injury) and a secondary psychiatric injury arising out of her employment with the InvoCare. Before the Appellant could proceed with her common law claim, she had to establish that she had an entitlement to compensation under the Workers’ Compensation and Rehabilitation Act 2003 (Qld).

The Appellant alleged that her injury arose out of her work over the period 2011 to 2012.

The duties the Appellant claimed contributed to her injury included:

  • moving chairs
  • carrying Neverfail water bottles
  • vehicle maintenance
  • coffin deliveries
  • transfer of deceased persons
  • transfer of caskets/coffins and pallbearing at funerals
  • burials

The Appellant’s claim was rejected by the Workers’ Compensation Regulator (Regulator). She appealed the Regulator’s decision to the Commission.

The Issue

The issue for determination by the Commission in the Appeal was whether the Appellant’s injury arose in the course of her employment.

The Experts

The Appellant relied upon the evidence of Dr Gillett, Orthopaedic Surgeon, in support of her claim. Dr Gillett provided a report to the effect that work practices over a period of time in relation to manual lifting, particularly the lifting of coffins, would have placed stress and strain on the lower back and on the Appellant’s fusion. Dr Gillett said that even without the work of a funeral director, the Appellant would have had some increasing degeneration to her lumbar spine. However, he estimated her duties caused an acceleration in her degeneration of 5 years more than what would have occurred.

The Regulator relied upon the evidence of Associate Professor Peter Steadman, Orthopaedic Surgeon. Associate Professor Steadman was of the opinion that the Appellant was suffering from Adjacent Segment Disease (ASD) an almost inevitable consequence of her previous spinal fusion. Importantly, he was ‘unable to ascertain any specific work related event or contribution over a period of time that would indicate employment was the cause of her complaint in terms of the deterioration’. Although he accepted that if the Appellant was undertaking regular heavy lifting of the type described, this would have exacerbated her condition, as Dr Gillett opined.

Both experts agreed that ASD can be a consequence of a spinal fusion.

The Judgment

In a judgment delivered on 30 October 2015, Industrial Commissioner Fisher refused the appeal, finding:

  1. At times the Appellant was required to undertake lifting outside of safe manual handling limits, in lifting oversized coffins. However, the weight of loads borne by her was not satisfactorily established.
  2. The Appellant was symptom free until 2010. The development of her symptoms was not associated with any particular incident or work task.
  3. The onset of the Appellant’s symptoms was more consistent with the evidence of Dr Steadman.
  4. The Commission was unable to accept on the balance of probabilities that the Appellant’s employment was a significant contributing factor to her injury.

Considerations

This case will be helpful for employers and claim managers who are defending manual handling cases. For those with similar claims, what’s most interesting about this case is that the Appellant was unsuccessful despite:

  • the Commission accepting that she had undertaken lifting outside of safe manual handling limits.
  • the employer giving the Appellant manual tasks with knowledge of her pre-employment spinal fusion.

Manual handling cases can be the most difficult types of workers’ compensation claims to defend. However, this decision highlights that workers may fail where they are unable to identify the precise work duties alleged to have caused their injury.

BOOK A FREE CONSULTATION for advice and information about a personal injuries matter by calling (07) 3067 3025 or contact us online.

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Kate DenningNo compensation for degenerative disc disease
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‘My Flexibility Story’ – October Proctor

The Queensland Law Society’s October edition of Proctor Magazine is out now.

In this month’s Proctor, Principal, Kate Denning, shares her flexibility story in an article written by the QLS Flexibility Working Group. The group needs stories from lawyers – good or bad. Lawyers can remain anonymous.

Read Kate’s story here:

My Flexibility Story

Kate Denning‘My Flexibility Story’ – October Proctor
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Photographs of woman at work led to compensable injury

Photographs of woman at work led to compensable injury

by Kate Denning Google+

Reasonable Management Action Qld – Reasonable Management Action Taken in a Reasonable Way – Workers Compensation Lawyers for Employers – Suing an Employer for Sexual Assault – Sexual Assault by Boss

Case note: Waugh v Simon Blackwood (Workers’ Compensation Regulator) & State of Queensland [2015] ICQ 028

The Facts

Ms Astrid Waugh (Appellant) brought a claim for workers’ compensation for psychiatric injuries arising in the course of her employment with the State Library of Queensland (SLQ).

The Appellant’s co-worker, Mr Bruce McGregor (McGregor), took covert photographs of the Appellant and a number of other people, using SLQ electronic devices.  The equipment was confiscated from McGregor and 2,500 images were found on the confiscated devices. A number of the images focused on the chest area of female employees of the SLQ.

The Appellant only became aware of the photographs in March 2013, after hearing rumours about McGregor’s actions. The Appellant approached a work colleague, who followed up with management about her concerns. The Appellant asked to see the images after a meeting with management on 2 May 2013. The Appellant said she was told that the images would be provided. A week later, the Appellant says that she was told, ‘Oh Astrid, your head is not even in most of them’.

The images were posted to the Appellant on 17 May 2013. This was after the SLQ undertook a consultation process, which included obtaining legal advice. The Appellant complained that management had ‘brushed her off’.

The Proceedings

The Appellant suffered a psychiatric injury. She made successful application to WorkCover Queensland for workers’ compensation benefits. The SLQ appealed the decision to accept the claim. The Workers’ Compensation Regulator upheld the SLQ’s appeal. The Appellant appealed to the Queensland Industrial Relations Commission (Commission). The Commission refused her appeal.

The Appellant appealed to the Industrial Court of Queensland (Court).

Her appeal challenged these findings of the Commission:

  1. That the injury did not arise out of, or in the course of, the Appellant’s employment as ‘the workplace was merely the background or setting in which the inappropriate behaviour took place’.
  2. The significant contributing factor to the injury was the taking of the photographs and not the Appellant’s employment.
  3. The manner in which the SLQ dealt with the issue was reasonable management action taken in a reasonable way.

The Judgment

In a judgment delivered on 8 October 2015, President Justice Martin allowed the appeal, finding:

  1. There was a delay in advising the Appellant of the existence of the photographs. That delay had some effect upon the Appellant.
  2. The fact that the photographs were taken in the workplace was integral to the development of the psychiatric injury. This was supported by unchallenged psychiatric evidence. This was a case in which the employment was more than just the setting in which the inappropriate behaviour took place. The effect of the behaviour and the intensity of the impact it had was magnified by the fact that it occurred in the workplace.
  3. The actions of the SLQ fell short of ‘reasonable management action’.

Considerations

The Court acknowledged that the circumstances of this case would test the best intentioned employer. However, it also highlighted some shortcomings of the SLQ, which the Court found were not dealt with by the Commission, including:

  1. The delay in advising the Appellant of the photographs and the nature of the photographs.
  2. The fact that the SLQ did not say anything to the Appellant until she approached another employee about the matter.
  3. The lack of any disciplinary action or sanction on McGregor.
  4. Allowing McGregor to resign.
  5. The tone of correspondence advising staff of McGregor’s resignation, which could be reasonably seen to be, if not supporting McGregor, a benign acceptance of his conduct.
  6. Failing to report the incident to a relevant authority.

It’s easy to imagine similar criticisms being made of an employer in say, a bullying case. This case will be of interest to those working in management, employment law or human resources. It highlights the fragility of these situations and the need for businesses to be aware of what could fall short of ‘reasonable management action’ in a workers’ compensation claim.

BOOK A FREE CONSULTATION for advice and information about a workers’ compensation matter, by calling (07) 3067 3025 or contact us online.

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Kate DenningPhotographs of woman at work led to compensable injury
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Parties review claims as Qld changes workers’ compensation laws

Parties review claims as Qld changes workers’ compensation laws

by Kate Denning Google+

New Qld WorkCover Laws – Changes to Workers Compensation Qld – Workers Compensation Lawyers Qld – Workers Compensation Lawyers for Employers

On 24 September 2015, the Workers’ Compensation and Other Legislation Amendment Bill 2015 (Qld) (Bill) received assent.

The changes

The Bill amended the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (Act).  The Act (as amended) provides that:

  1. Workers injured during the period 15 October 2013 to 30 January 2015 and assessed with a Degree of Permanent Impairment (DPI) of 5% (threshold) or less, will be paid ‘additional lump sum compensation’ to compensate them for the fact that they cannot claim common law damages against their employer.
  2. From 31 January 2015 onwards, workers with an accepted claim for compensation under the Act will be able to seek common law damages against their employer, without the need to exceed the threshold.

For respondents

The amendments will be welcomed by respondents to some claims regulated by the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) and the Motor Accident Insurance Act 1994 (Qld) (MAIA). It was a consequence of changes to workers’ compensation laws passed in 2013, that respondents to claims could not seek contribution from employers on a joint tortfeasor basis where workers suffered an injury with a DPI of 5% or less: Bonser v Melcanais [2000] QCA 13.

This resulted in general insurers, respondents to PIPA claims and compulsory third party insurers, having to pay 100% of the damages payable to workers in what were otherwise, master/servant claims. This anomaly caused particular problems for organisations with complex company structures. For claims arising out of incidents on or after 31 January 2015, these respondents will now be able to join an employer as a party to a claim in accordance with the Law Reform Act 1995 (Qld) and the regulating legislation.

Contractual indemnities

The changes do not address the Supreme Court decision of Byrne v People Resourcing (Qld) Pty Ltd & Ors [2014] QSC 269. A respondent with a contractual indemnity in its favour (from an employer) can seek to enforce that indemnity against an employer, WorkCover or a self-insurer.

How to respond

We recommend that insurers and PIPA respondents conduct a review of their current Queensland claims to consider potential claims for contribution or indemnity in contract or tort.

BOOK A FREE CONSULTATION for advice and information about a workers’ compensation matter, by calling (07) 3067 3025 or contact us online.

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Kate DenningParties review claims as Qld changes workers’ compensation laws
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Tip truck tray injury not caused by host employer negligence

Tip truck tray injury not caused by host employer negligence

Thomas v Trades & Labour Hire Pty Ltd & Anor [2015] QSC 264

Employee Fails to Follow Instructions – Negligent Worker – Tip Truck Accident – Tailgate Accident – Workers Compensation Lawyers for Employers – Workers Compensation Lawyers Qld – Truck Injury Lawyer Blog – Truck Injury Compensation – Truck Injury Law Firm – Truck Injury Lawyers – Tailgate Truck Accident – Liability Claims Example

Facts

Mr Grant Thomas (Worker) was employed by Trades & Labour Hire Pty Ltd to work at the Gold Coast City Council (Host Employer) as a driver and operator of a tip truck (truck).  The Worker was an experienced driver and had worked around trucks for most of his working life.

The Worker took a load of broken pieces of concrete curbing in the Host Employer’s truck to the Suntown Tip at Arundel. The truck was fitted with a tipper tray, which could be raised and lowered hydraulically. The Worker decided to discharge the load under the tailgate, with it swinging on its horizontal axis.  The Worker chose this method, believing that the pieces of concrete were small enough to go under the tailgate. A sample of concrete pieces taken from the load after the incident contained pieces around 600mm wide.

He released two clasps securing the bottom of the tailgate tray from inside the truck cabin. As he was discharging the load, the Worker noticed something wrong with the tailgate. He said it looked as though one corner of the tailgate was hitting the ground. He went to inspect the issue.

The Worker pushed on the tailgate and it fell to the ground, falling on him and causing serious injury to his left foot.

Issue

The matters in issue at trial were whether:

  • the Worker had pushed the tailgate immediately prior to it falling to the ground or whether it had ‘popped off’.
  • the Host Employer had an adequate system of maintenance in place for the truck.
  • the Host Employer provided adequate training and instructions to the Worker.

Judgment

The Worker had given prior inconsistent statements about the sequence of events leading up to the tailgate falling off. He told a co-worker after the event that he had pushed on the tailgate. He also said that he pushed on the tailgate in his Notices of Claim.  However at trial, the Worker said that he was just thinking about pushing on the tailgate and didn’t actually push on it.

The Host Employer had given a written instruction to workers to ‘immediately report’ any problems with vehicles.

Expert evidence was led about whether the hinge pin, which was holding the tailgate on, was wearing prior to the incident and whether that wear should have been detected. The Court found that the crack to the hinge pin was probably caused during manufacture and present for up to six (6) months prior to the incident.

Despite this, the Court did not consider that it was reasonable for inspection of the pin to form part of any inspection or maintenance process.

The Court found that the cause of the cause of the hinge pin breaking and the tailgate falling off, was the Worker pushing on the tailgate. This was despite the evidence of the Defendants’ and Plaintiff’s engineers, that the tailgate could have fallen off without any interference by the Worker.

The Court gave judgment for the Defendants.

Considerations

This case will be of assistance to those managing claims involving workers with many years of industry experience, who disobey a written instruction by an employer. Particular emphasis was placed upon the instruction given to the Worker in the judgment. It may also be of interest to those compulsory third party insurers whose policies extend beyond driving, to the ‘use of’ a vehicle.

BOOK A FREE CONSULTATION for advice and information about a personal injury matter, by calling (07) 3067 3025 or contact us online.

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Kate DenningTip truck tray injury not caused by host employer negligence
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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.