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How to Detect Fraud in Personal Injury Claims

How to Detect Fraud in Personal Injury Claims

Fraud – Insurance Fraud – Fraud Qld – Detect Fraud – Fraudulent Misrepresentation – Insurance Fraud Investigation – Insurance Fraud Reporting – Insurance Fraud Cases – Insurance Fraud Penalties Qld – Insurance Fraud Definition – Dispute Insurance Claim

Insurance fraud has been estimated to account for about 10% of general insurance costs in Australia ($2B annually). This doesn’t take into account undetected fraud.

Some people may take the view that insurance fraud is a victim-less crime. But most would agree that money spent investigating, defending, paying or prosecuting fraudsters could be better used to reduce insurance premiums and pay genuine claims.

So what are some red flags that could suggest fraud in a personal injury claim? Here are some that we’ve identified:

Late claim

If a claim is started close to the expiration of a Plaintiff’s limitation period, then questions will arise about why the Plaintiff has taken so long to bring their claim. Check what treatment the Plaintiff has had since the event. Consider the Plaintiff’s current circumstances. Has the Plaintiff had a change in their employment status, medical advice, legal representation or personal circumstances? One or more of these things may explain why the claim has been brought late.

Delay in medical treatment

A delay in seeking medical treatment after an event is usually detected by treating health care providers and medico-legal experts. The longer that a Plaintiff delays treatment for an injury, the more difficult it may be to prove that the incident caused it. Of course, some medical conditions are characterised by a delayed onset of symptoms. So consider how similar injuries are diagnosed and treated.

Just started a job

A Plaintiff injured in a workplace just after they’ve commenced employment may come under more scrutiny than a longstanding employee. Consider the Plaintiff’s employment history. Did the Plaintiff start the job after a long period of unemployment? Were they adequately trained and supervised? Did the Plaintiff’s employment history suggest they were capable of performing the task?

Project coming to an end

If a claim is made by a Plaintiff working on a project that is approaching finalisation, the Defendant may be suspicious of the Plaintiff’s motivation for bringing their claim. Has the Plaintiff brought a claim in similar circumstances in the past? Was the Plaintiff facing other disciplinary action from the employer? If not, the Defendant’s suspicions may lead nowhere.

Retirement approaching

Claims by Plaintiffs close to retirement age will usually be managed with caution. If a Plaintiff goes from full-time to part-time employment after their injury, check if there were social security or superannuation incentives for doing so. Investigate the Plaintiff’s retirement plans and financial commitments. If a Plaintiff worked in a physical occupation, are there statistics available about the average retirement age of men/women doing that work.

Claims history

It goes without saying that a history of numerous claims will be of concern to a Defendant. Determine the seriousness of the injuries in those past claim/s and their relevance to the current one.

No witness

If there were no witnesses to an incident, then there is no one to verify a Plaintiff’s account. However, the lack of a witness will not necessarily prevent a Plaintiff from succeeding in their claim. Check whether documentary evidence could support the Plaintiff’s version. Did the Plaintiff immediately report the injury? Has the Plaintiff’s description of the incident stayed consistent over time?

No reporting

Defendants are right to be suspicious of claims for injuries that were not reported when they occurred, particularly where a workplace policy requires all incidents and injuries to be reported. Did the Plaintiff report their injury to health care providers and not the Defendant? If so, this may be adequate. Did the Plaintiff later describe the incident as involving a ‘sudden’ or ‘immediate’ onset of pain? If so, why didn’t they report their injury?

Limited treatment

How much treatment has the Plaintiff received for their injuries since the event? Check whether the Plaintiff’s records contain references to other conditions. Is there limited references to the injuries for which damages are claimed? If other conditions dominate the treating records or a Plaintiff has had little treatment, then Defendants may query the extent of the impact that the injury has had on the Plaintiff’s life.

Holidays

It’s a widely held belief in personal injury litigation that: a Plaintiff able to travel; is also able to work. Defendants will be suspicious of Plaintiffs that go on holidays after suffering an injury, which is apparently so serious, that they cannot work. If possible, find out when the Plaintiff made their travel arrangements. Was it before or after the event? What kind of holiday did the Plaintiff go on?

For Defendants

Defendants should use red flags like these to detect fraud and limit their exposure to damages, legal costs and rises in insurance premiums. The sooner that fraud is detected, the faster that parties can dispose of a claim.

However, these red flags do feature in lots of personal injuries claims. So, one of these in isolation doesn’t necessarily mean that a Plaintiff is bringing a fraudulent claim. It may simply be that the Plaintiff needs to offer a satisfactory explanation.

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

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Kate DenningHow to Detect Fraud in Personal Injury Claims
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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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Responding to a request for a Compulsory Conference

Responding to a request for a Compulsory Conference

by Kate Denning Google+

Compulsory Conference PIPA – Compulsory Conference Queensland – Compulsory Conference WorkCover Qld – Compulsory Conference Personal Injury

In claims regulated by the Personal Injuries Proceedings Act 2002 (Qld) (PIPA), Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) and the Motor Accident Insurance Act 1994 (Qld) (MAIA) any party may ‘call’ a Compulsory Conference (conference).

So, you’ve been involved in a matter for some time now and another party calls a conference. What do you do?

Here’s our list of suggested ‘do’s’ and ‘don’ts’:

The Don’ts

Ignore the request

If a request for a conference is made, a response should be given within a reasonable timeframe. What’s ‘reasonable’ will vary for each matter, the number of parties involved and the time of year. For instance, if it’s October and parties are trying to arrange a mediated conference in a multi-party dispute for December, it would be helpful for all the parties to provide their availability within a day or two, to lock down a date.

Whenever a request for a conference is made, we should consider it possible that all communications exchanged between the parties thereafter could end up annexed to an affidavit in a Court application. If there’s a gaping whole in a chronology showing no response to a request from one party – that party should expect embarrassment at the hearing of the application.

Immediately agree to the request

Unless you have instructions from your client, intimate knowledge of the matter and you are confident that all outstanding steps, information and documents will be taken or gathered before a conference – do not just jump in and commit to a conference. Don’t agree to a conference just because there’s pressure from another party to provide an immediate response. This can be a trap that early career lawyers fall into and this kind of reactive advocacy could impact upon the outcome of the matter and the relationship with a client.

Cause unreasonable delay

If there are outstanding steps or investigations that should have been completed and they haven’t – don’t refuse to agree to a conference because that work hasn’t been done. A common object of each of the pre-court regimes is the early resolution of personal injury claims. Of course, we are all human (especially lawyers) and at times, some matters demand our attention over others.

A better approach could be to explain to the other party that you will need certain information or material in order to actively participate in a conference, sign a Certificate of Readiness or make a meaningful Mandatory Final Offer (MFO). Otherwise, consider suggesting a tentative date for a conference, proposing the matter proceed by way of informal conference or that a date for conference be scheduled within a defined timeframe.

The Do’s

Review the matter

The exchange of MFOs, Certificates of Readiness and the cost consequences that flow from MFOs, make holding a conference a step with serious consequences for clients and lawyers.

A Certificate of Readiness under the PIPA and WCRA, certifies that the lawyer (or the party) considers the party to be, in all respects, ready for the conference. In claims regulated by the MAIA – the legislation is more onerous – with the lawyer required to certify that ‘the party is in all respects ready for trial.

Some of the things to consider when reviewing a matter are whether:

  • all outstanding steps have been undertaken under the legislation.
  • all factual investigations and instructions from the client have been obtained.
  • adequate responses have been received from the Claimant, other parties or non-parties to all requests for information and documentation.
  • all necessary expert evidence has been provided.
  • the parties have undertaken disclosure.
  • all parties with a liability in contract, tort or under a policy of insurance have been joined to the claim.

Consider mediation

For multi-party disputes, it may be appropriate for a conference to proceed by way of mediation. A conference can proceed by way of mediation, ‘if .. the parties agree’. Parties are sometimes reluctant to suggest mediation. Perhaps this is because they’re concerned the other party/ies may think they really want the matter resolved or perhaps they’re concerned it could be seen as a concession of liability or risk exposure.

There can also be disputes about the contributions towards a mediator’s fee. Often a party who considers itself with no exposure will resist agreeing to meet their share of the cost of a mediator. This position might be justified, for instance, where one party is owed a contractual indemnity by another. However, these disputes can end up costing clients more in solicitor’s fees than the actual share of the mediator’s fee, so it’s best to stick to the real issues in dispute. Instead, make your attitude towards the claim known through Contribution Notices, liability responses or requests for particulars.

Of course, it’s not always appropriate to mediate. If the parties know that a matter is unlikely to settle at conference, it may be a cost that they’d prefer to avoid and reserve mediation for the litigated stage. Conversely, if the parties think a matter can be resolved because the parties are on the same page, then mediation may not be necessary.

Informal conferences

Informal conferencing can be useful where a party is not ready to participate in a conference under the legislation. The parties can agree to participate in an informal conference and agree to dispose with the requirement for a conference under the legislation to be held if the matter does not settle.

With this approach, parties don’t have the pressure of MFOs and Certificates of Readiness weighing upon the negotiations. Also, if the matter fails to resolve, they needn’t incur the legal costs of a conference at a later date.

Set a tentative date

In a multi-party dispute it’s a good idea for the parties to tentatively schedule a conference early in the matter to give the everyone a date to work towards. This is practical in multi-party disputes where claims may be regulated by two or more pieces of legislation. Also, with a date scheduled months in advance, it makes it difficult for one party to wriggle out with excuses. Medical examinations, factual investigations, requests to parties and requests to non-parties can all be worked into an agreed timetable.

Comments

The object of a conference is for a claim to be settled at an early stage, without the need for litigation. There’s no point in agreeing to a conference if the parties won’t be ready but one party should not cause unreasonable delay for the others.

For advice on insurance law matters, please contact us. Keep up to date with the latest news and developments in insurance law, by subscribing to our blog, InDefence.

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 DenningResponding to a request for a Compulsory Conference
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‘Actively Participating’ in a Compulsory Conference

‘Actively Participating’ in a Compulsory Conference

Compulsory Conference PIPA – Compulsory Conference Queensland – Compulsory Conference WorkCover Qld – Compulsory Conference Personal Injury

Parties to a Queensland personal injury claim are required to attend a Compulsory Conference (conference) and ‘actively participate’ in an attempt to resolve the claim, before proceedings can be started in a Court.

An exception is made for a party, that has a ‘reasonable excuse’ not to do so.

A variety of methods are used by parties and their lawyers to try to get the most out of a conference and it’s interesting to see how the meaning of ‘active participation’ is interpreted in practice.

Some of the methods that we see arise are:

1. Passive

In a multi-party dispute, it’s usually easy to identify the party who’s taking a passive role before the matter gets to a conference. The party may be non-communicative or just generally indifferent about the progress of the matter.

The idea that a party could be passive at conference is at odds with the requirement under the legislation for parties to ‘actively participate’. However, in certain circumstances, it’s appropriate for a party to adopt that position – they may have a ‘reasonable excuse’. For example, where a Respondent or Contributor has a reasonable suspicion of fraud.

For the remaining parties, it’s important that the passive party is identified prior to the conference and advice is provided to respective clients about the likely attitude of that party in negotiations.

If other parties see a significant exposure for the party taking a passive role, it could be useful to have some pre-conference discussions about liability, contribution or any other relevant issues. If you don’t, you might be surprised to find that a conference is a waste of time and money.

2. Aggressive

The Australian Solicitors Conduct Rules require solicitors to be, ‘courteous in all dealings in the course of legal practice’. So its unfortunate when aggression (as opposed to robust debate) is seen at conferences. Perhaps it’s an attempt to rattle the other person or, perhaps it’s because the aggressor isn’t familiar enough with the matter.

For those on the receiving end, it can feel like a personal attack and there’s simply no valid reason for this kind of conduct. It does nothing to facilitate the negotiation process. Complaints to regulating bodies may be a consideration depending on the circumstances.

3. Measured

Most conferences proceed with numerous offers exchanged, with those offers moving gradually towards an acceptable position. The advantage of this ‘death by a thousand cuts’ method of negotiation is that the client may feel as though they have remained in control throughout the negotiation process and have gotten the ‘best deal’, where a settlement is achieved. Of course, it’s possible that this approach may frustrate some opponents or their representatives, who are seasoned negotiators and believe that it’s best to just move the negotiations along more quickly.

4. Conservative

When information remains outstanding at a conference, one or more parties may decide it’s best to, ‘keep their powder dry’ and to make few concessions in the negotiations. When MFOs are ultimately exchanged, they may be far apart, with parties hoping to achieve a better outcome through a litigated mediation.

This approach might be appropriate in a case where, for example, neither party has obtained expert medical evidence about a subsequent injury. In such a scenario, the parties know that more evidence will need to be gathered prior to a trial but do not know if that evidence will help or hurt their case.

This approach is less likely to arise in a claim that is regulated only by the Workers’ Compensation and Rehabilitation Act 2003 (Qld), where orders about costs flow only from MFOs. In workers’ compensation claims, the parties are under pressure to make their ‘best offer’ at conference.

Where claims are regulated by the Personal Injuries Proceedings Act 2002 (Qld) and the Motor Accident Insurance Act 1994 (Qld), parties may feel that they can hold out for a better offer at a litigated mediation.

5. Surprise!

If you have ever been at a conference where surveillance has been revealed, you’ll understand this technique perfectly. Of course, documents and information that are required to be disclosed, should be provided on an ongoing basis in accordance with the legislation. Some innocent examples of late disclosure that arise may include providing file notes from telephone attendances with medical experts or witnesses just prior to, or, at conference (where late investigations cannot be avoided). If late disclosure obstructs the negotiations, then it may be appropriate for the party at a disadvantage to propose that the conference be adjourned and re-convened at a later date. Intentional deception of an opponent by a lawyer can amount to professional misconduct. 

6. Efficient

‘Can we cut to the chase?’

‘Can we split the difference’?

If you’re in a conference where opposing parties or their representatives are on the same page, then it’s likely that someone will try and move the negotiations along with questions like these. The difficulty with agreeing to this type of request, is that you won’t necessarily know if you could have achieved a better outcome by continuing to negotiate, by the exchange of more offers.

An efficient negotiator might also call for MFOs early in the negotiations. This may be done in response to slow movement in offers by the other party, to force the other party to make a significant concession. Where a claim is capable of resolution at conference, this technique may totally obstruct negotiations and actually backfire on the person calling for MFOs. It should not be done to bluff the opponent/s and of course, only upon instructions from the client.

Comments

‘Active participation’ can mean many very different things at a conference. It’s a good idea to tailor your approach for conference to your matter, your client, your opponent/s and for the advantages to be gained under the legislation regulating the claim.

To keep up to date with the latest news and developments in insurance and personal injury law, subscribe to our blog InDefence.

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 Denning‘Actively Participating’ in a Compulsory Conference
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Making a Mandatory Final Offer in Queensland

Making a Mandatory Final Offer in Queensland

Compulsory Conference PIPA – Compulsory Conference Queensland – Compulsory Conference WorkCover Qld – Compulsory Conference Personal Injury

by Kate Denning Google+

Introduction

In Queensland, parties to a personal injury claim are required to make a ‘mandatory final offer‘ or ‘written final offer‘ (MFO). An MFO is made at the end of an unsuccessful pre-court Compulsory Conference in claims regulated by the:

Here are just some of the irregularities that can arise with MFOs in Queensland claims:

No Mandatory Final Offer

Cost consequences flow from an MFO. Any cost orders ultimately made will depend on: the amount of the offers compared with any judgment; the legislation regulating the claim; offers made during the litigation (except in WCRA claims); and, in limited circumstances, case building that occurs once the matter is litigated. To avoid the potential for adverse cost consequences, a party may agree to participate in settlement negotiations on an informal basis only, so that they are not required to exchange MFOs (or provide a Certificate of Readiness). In multi-party disputes, this strategy may be appropriate for a PIPA Respondent that has been joined to a claim late in the piece. Otherwise, a refusal by one party to have a level playing field with the others for no valid reason, is likely to impact settlement negotiations.

Offers inclusive of costs

Under the PIPA and MAIA, where an offer is at or below the ‘upper offer limit‘, parties are required to make offers which are exclusive of costs. Otherwise, parties are permitted to make MFOs which are inclusive of costs.  These types of MFOs should be made with caution.  Offers which are inclusive of costs have received unfavourable treatment by the courts. The difficulty with these types of offers, is that there’s no way for a court to identify from the MFO the amounts allowed for damages and costs.

Offers fixing an amount for costs

A Respondent may make an offer which fixes an amount for costs. The advantage of doing so is that, if accepted, the Claimant has agreed to an amount for costs and no further negotiations are necessary. However, where an offer fixes costs and that offer is rejected – a question might arise later on about whether the Claimant was justified in rejecting it because the allowance for costs was too low. As with offers which are inclusive of costs, these types of offers should be made with caution.

Offers between Contributor and Respondent

Under the PIPA, parties to a contribution claim are not required to exchange MFOs. However, under the WCRA, both Contributors and Respondents are required to make MFOs. The result of this is that for claims regulated by both the WCRA and PIPA, PIPA Contributors may choose to make no offer towards settlement during pre-court negotiations, as a matter of strategy. It may be in the interests of a PIPA Contributor to take a passive role in the claim and see if the other parties will reach a compromise without any offer from them towards a settlement. However, in a claim where a PIPA Contributor has significant exposure, this approach may simply compel the parties to litigate.

Joint MFOs

For claims regulated by the WCRA, costs only flow from the MFO. So, where a claim is regulated by the WCRA and PIPA, the Respondent and Contributor/s in the WCRA claim will be reluctant to make an MFO of $nil. The result is that at Compulsory Conferences there is more pressure on the WCRA parties, than the PIPA parties, to make an appealing MFO to a Claimant. Conversely, if a WCRA party has made reasonable attempts to resolve a matter during the pre-court stage, then they may be reluctant to co-operate with a PIPA party that is keen to negotiate well into the litigation.

Attaching a Release and Cost clauses

Care should be taken when drafting the MFO. If the MFO refers to a Release and a copy of that Release is not attached to the MFO, that may affect the validity of the offer. For claims under the PIPA and MAIA, where a Release is attached and there is otherwise no obligation upon a Claimant to sign a Release, a question may arise about whether the terms of the Release affected the acceptability of the Respondent’s offer. Consideration should also be given to the wording of any clause about costs in the MFO. Particularly if the MFO refers to costs being payable in anyway other than ‘in accordance with the’ relevant legislation regulating the claim.

Clash of the MFOs

MFOs are ‘exchanged’ and so parties do not usually know what offer/s will be made by their opponent/s. In rare circumstances, two parties may make MFOs to each other which are less favourable than the offers put to them.  For instance, Company X offers to settle a Claimant’s claim for $100,000 but the Claimant offers to settle her claim for just $80,000. Parties may attempt to address this by adding a clause to the MFO to the effect that the document serves as an acceptance of any offer that is less/more than the offer made by their opponent.

Expiring limitation period

A Claimant must commence proceedings within 60 days of a Compulsory Conference and cannot start those proceedings while the MFOs are open. MFOs must stay open for 14 days (10 business days for WCRA claims). There is no discretion under the legislation for that time to be abridged. So, for claims regulated by the PIPA and MAIA, a Compulsory Conference must be held no later than 10 business days prior to the expiration of a limitation period, to allow the MFOs to expire and the Claimant to commence proceedings.

Getting it right

There’s no set formula for getting your MFO ‘right’. However, each piece of legislation has its own nuances. It’s important to be familiar with the legislation that regulates both your claim AND your opponent’s. Adequate preparation before a Compulsory Conference will facilitate negotiations and prevent confusion between parties and their legal representatives when MFOs are exchanged.

For the latest news in insurance and personal injuries law, subscribe to our blog, InDefence.

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 DenningMaking a Mandatory Final Offer in Queensland
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Projectile case not regulated by motor accident legislation

Case note: Hornby v Opbroek & Anor [2015] QDC 101

MAIA – Motor Accident Insurance Act – CTP Lawyers Brisbane – Road Accident Brisbane – CTP Insurance Qld what does it cover? 

Background

Sarah Hornby (Plaintiff) brought an application for a declaration that her claim for personal injuries was regulated by the Motor Accident Insurance Act 1994 (Qld) (MAIA).  The Plaintiff suffered injuries to her face and upper body when Reece Opbroek (First Defendant), threw a beer bottle at the vehicle in which she was a passenger (the Holden).  The glass struck the rear door of the Holden and smashed, then struck the Plaintiff.  When the First Defendant threw the bottle, he was driving a Mazda, with one hand on the steering wheel.

Issue

The issues for determination were whether the injuries, for the purposes of section 5 of the MAIA:

  1. resulted from the driving of the motor vehicle; and
  2. were ’caused by, through or in connection with a motor vehicle’.

Pleadings

In the Statement of Claim the Plaintiff alleged the First Defendant was negligent in the following respects:

  1. failing to exercise proper control over the Mazda to avoid injury to the Plaintiff;
  2. failing to avoid an accident;
  3. failed to drive the Mazda for lawful purposes;
  4. driving the Mazda so that it could be used to position himself to throw a bottle at the Holden; and
  5. positioning the Mazda so he could throw the beer bottle at the Holden in contravention of s 26(1)(a) of the Summary Offences Act 2005 (Qld).

Submissions

The Second Defendant, AAI Limited, made submissions as follows:

  • there was nothing relating to the driving of the vehicle, that would trigger sub-sections 5(1)(a) and (b) of the MAIA.  There needed to be “some wrongful act with respect to the driving, not simply the release of the bottle”.
  • the allegations of negligence pleaded by the Plaintiff did not accord with the Statement of Agreed Facts.
  • there was no factual basis upon which the Court could make any finding, either directly or inferentially, that would identify some relevant fault on the driver.

The Plaintiff made submissions as follows:

  • the injury was ’caused partly by a wrongful act in respect of the control of’ the Mazda.
  • the driving was fundamental to the injury because the First Defendant maintained control of the vehicle in such a way as to allow him to throw the bottle by holding the steering wheel with one hand and throwing with the other hand.
  • the ‘manner’ of driving was a ‘wrongful act’ in that the ‘controlling’  of the vehicle was to ‘effect a tortious act’ which ‘led’ to injury.

There was no real contest that the bottle was thrown ‘by, through or in connection with’ the Mazda.

Findings

Dorney QC DCJ found that:

  1. the injuries were a ‘result’ of the driving of the motor vehicle.
  2. there was no link between the motor vehicle and any wrongful act on the part of the Second Defendant (which is simply pleaded as ‘negligence’) because no negligent act was set out in the agreed facts.

The Court dismissed the Plaintiff’s application.

Considerations

The case serves as a reminder for parties to consider whether the legislation that a claim is brought under, does in fact apply to that claim.

In this case, the agreed facts failed to establish a wrongful act and negligence relating to the driving of the vehicle, so the Plaintiff’s claim was excluded by the MAIA.

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 DenningProjectile case not regulated by motor accident legislation
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Insurer required to fund rehabilitation despite DNA evidence

Case note: Lee v RACQ Insurance Limited [2015] QSC 120

CTP Lawyers Brisbane – CTP Law Changes – Care for accident rehabilitation – Motor vehicle accident rehabilitation – MAIA – Motor Accident Insurance Act – Reasonable suspicion of fraud

Overview

Mr Lien Yang-Lee (Applicant) made application to the Supreme Court of Queensland for an injunction to prevent compulsory third party (CTP) insurer, RACQ Insurance Limited (Respondent), from ceasing to provide rehabilitation, under the Motor Accident Insurance Act 1994 (Qld) (MAIA).

The Applicant was badly injured in a head-on motor vehicle accident.  The Applicant brought a claim against his father, the alleged driver of the vehicle in which he was travelling.  The Respondent was the CTP insurer of that vehicle.

Because of the Applicant’s youth and severe disabilities, the Respondent agreed to fund rehabilitation in accordance with section 39(1)(a)(iv) of the MAIA.  The Respondent funded around $200,000 in rehabilitation.

The Respondent’s claim manager had concerns about the circumstances of the accident.  The police report noted an issue as to who was driving.  As police investigations advanced, it was revealed that blood all over the driver’s side airbag belonged to the Applicant – not his father.  A late-comer to the scene saw the Applicant’s father attending to the Applicant.  That bystander noticed that the Applicant had a lot of blood on his face.

The police concluded that the Applicant was driving the vehicle.

Issue

The issue to be determined was whether the Applicant should be granted an injunction to prevent the Respondent from refusing to fund rehabilitation.  The evidence before the Court was hearsay.

Findings

In a judgment delivered on 7 May 2015, Dalton J found as follows:

  1. The Applicant demonstrated a case at first instance.  The Applicant’s family had sworn affidavits that he was not driving the car.
  2. Further rehabilitation may assist the Applicant.  That weighed most heavily against the money that would be lost to the Respondent, if the Respondent ultimately established fraud.
  3. The Application was successful and the Respondent was enjoined from reducing any rehabilitation under the MAIA.

Considerations

Despite ‘quite strong circumstantial evidence of fraud’ and the fact that funding of rehabilitation under the MAIA is voluntary, the Respondent couldn’t reduce its funding of rehabilitation to the Applicant.  That rehabilitation was estimated at approximately $40,000 per month.  The Applicant had no assets and offered no security to the Respondent.

Insurers should have regard to this judgment before agreeing to fund rehabilitation ‘on a without prejudice basis’ under the MAIA.

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Plaintiff needed expert evidence to prove speed caused collision

Case note: Tinworth v Insurance Australia Limited [2015] HCA Trans 87 (17 April 2015)

Background

Mr Steven Tinworth (Tinworth) was injured at Ipswich, Queensland at the time of the January 2011 floods. He was struck by an aquaplaning vehicle as he stood by the side of the road.

Tinworth lost control of his utility in a patch of water on the highway.  Sometime after his accident, a second vehicle aquaplaned off the road in a similar way.  Tinworth went to check on the driver of that vehicle, when yet another vehicle, driven by Mr Michael Haydon (Haydon) hit the water and aquaplaned off the road, striking Tinworth.

There was a sign on the highway about 500m before the accident location which said, ‘Road subject to flooding’.  The speed limit was a 100 km/hr.  Haydon estimated his speed between 80-100 km/hr.

There was about 2cm of water on the road.  Haydon saw the water when he was 50m away from it.  It was not raining (or it was raining lightly) when the collision occurred.

The trial judge dismissed Tinworth’s claim.  Tinworth appealed to the Queensland Court of Appeal (QCA). That appeal was dismissed, with Justice Morrison in dissent.  Tinworth made application for special leave to the High Court of Australia (HCA).

HCA Proceedings

The application for special leave was heard on 17 April 2015.

Tinworth made submissions as follows:

  1. Only in an unusual case could an individual, who is struck by a vehicle leaving the roadway at speed, be unsuccessful.
  2. Haydon should have travelled at a slower speed, given the signage and conditions.
  3. The majority of the QCA departed from the trial judge’s view and concluded that there had been, ‘a strong argument that negligence was evident’.
  4. Adopting a common sense approach, it was open to the Court to find that if Haydon had been travelling at a speed of say 80 km/hr, the collision would have been avoided.

The submissions of Insurance Australia Limited, who defended the case against Haydon, made these points:

  1. There was no useful evidence at trial about the speed at which the water could be safely traversed.
  2. Tinworth failed to prove causation.  He didn’t establish that if Haydon had been travelling slower, he would have seen the water in time to reduce his speed further. He also failed to prove that if Haydon had reduced his speed, he would not have lost control of the vehicle.
  3. The conditions had changed between when Tinworth lost control and when Haydon lost control.  So it would be unreasonable to use Tinworth’s speed (of 80-85 km/hr) as a guide to determine a safe speed of travel for Haydon.
  4. Courts can draw conclusions about distance travelled at a particular speed, however, they cannot determine reaction time.  Reaction time is a matter of expert evidence.
  5. In line with the approach in Rickard v Allianz, a case like this requires expert evidence to establish causation.
  6. Why would it be unreasonable to travel under the speed limit, when there was no rain (or light rain)?

Justice Keane refused the application for special leave with costs, saying the case turned on the application of settled principle to very unusual facts.

This case (and Rickard v Allianz) may be of interest to those managing claims involving an agony of the moment defence and speed.

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Kate DenningPlaintiff needed expert evidence to prove speed caused collision
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‘Following car’ 75% to blame for unsafe overtaking manouevre

Case note: Veyt v Stevenson & Anor [2015] QDC 84  

CTP Lawyers Brisbane – CTP Law Changes – Truck Accident Qld – MAIA – Motor Accident Insurance Act – Truck Accident Lawyer – Motorcycle Accident Lawyer

Facts

The Plaintiff, Mr Gilbert Veyt (Veyt), a 51 year old motorcycle rider, was attempting to overtake a truck, driven by the Defendant, Mr Lyle Stevenson (Stevenson).

Attempting to pass Stevenson’s truck, Veyt moved his motorcycle into an overtaking lane.  Ahead of the truck, was a bicycle.  All vehicles were travelling in a southerly direction on Stapylton-Jacobs Well Road, Queensland.

At the same time as Veyt was attempting to overtake Stevenson’s truck, Stevenson moved into the northbound lane, to provide a safe distance between his vehicle and the bicycle.

Veyt, unaware of why Stevenson’s truck had moved into the overtaking lane, attempted to abort his passing manoeuvre.  However, he lost control of his motorcycle and crashed onto the roadway.

Veyt alleged that Stevenson’s truck clipped his arm.  However, he gave inconsistent versions of the accident during his property damage claim.  An entry in the insurer’s records noted that Veyt said it was his motorcycle that actually clipped the back of the truck.

Issue for determination

Veyt alleged that Stevenson was negligent for (among other reasons):

  1. failing to observe the motorcycle was overtaking the truck.
  2. failing to indicate his intention to move into the overtaking lane.
  3. failing to exercise due care and skill in the management and control of the truck.

The insurer for Stevenson, CGU, defended the claim, alleging that Veyt had failed to keep a reasonable distance behind the truck, failed to keep his vehicle under control and failed to have regard for his own safety.

Findings

In a judgment handed down in the Southport District Court on 21 April 2015, the Court made these findings of fact:

  1. The truck driver used his indicators, was acting lawfully, was not speeding and checked his mirror before moving into the overtaking lane.  The court also found that he did not leave Veyt insufficient room to overtake and only entered the overtaking lane by a couple of metres.
  2. Veyt was, for the most part, travelling in the truck’s blind spot and failed to observe the truck’s indicators, probably because he was attempting to pass the truck at 90 km/hr.
  3. Stevenson’s truck did not come into contact with Veyt.
  4. Stevenson was only 20 to 30 metres away from Jensen before he activated his indicators.

The Court determined that the actions of both drivers contributed to the accident.  The Court said that Stevenson, as an experienced truck driver, should have known that there was a risk that a vehicle travelling behind, could be in his blind spot.  Because of this, he should have been more careful in checking his rear view mirrors before moving to the right.  Stevenson was also considered negligent for indicating his intention to move into the overtaking lane too late.

Given the findings of fact, the Court found that Veyt was negligent and considered an appropriate distribution of blame would be 25% to Stevenson (Defendant) and 75% to Veyt (Plaintiff).

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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.