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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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Workers’ compensation changes to affect contribution claims

Workers’ compensation changes to affect contribution claims

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On 14 June 2016, the Queensland Parliament introduced the Workers’ Compensation and Rehabilitation (National Injury Insurance Scheme) Amendment Bill 2016 (Qld) (Bill).

On 31 August, the Bill was passed (with amendments) that will constrain contractual indemnity clauses in workers’ compensation claims.

The Bill

The Bill is part of a broader social reform which includes the establishment of the National Injury Insurance Scheme for Queenslanders.

The Bill set out to restore the original policy intent of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) and provide certainty to stakeholders after recent Court decisions interpreted certain provisions of the WCRA in ways that could adversely affect the operation of the scheme.

The Amendment

Clause 31: which will amend Chapter 5 of the WCRA states as follows:

‘236B Liability of contributors

(1) This section applies to an agreement between an employer and another person under which the employer indemnifies the other person for any legal liability of the person to pay damages for injury sustained by a worker.

(2) The agreement does not prevent the insurer from adding the other person as a contributor under section 278A in relation to the employer’s liability or the insurer’s liability for the worker’s injury. 

(3) The agreement is void to the extent it provides for the employer, or has the effect of requiring the employer, to indemnify the other person for any contribution claim made by the insurer against the other person.

(4) In this section-

damages includes damages under a legal liability existing independently of this Act, whether or not within the meaning of section 10.’

The Bill also proposed to amend the definition of damages under section 10 of the WCRA, however, a motion in the parliament to change the definition was defeated.

For Parties 

This amendment will mean that if:

  • a common law claim has been made against an employer; and,
  • the employer agreed to indemnify another party for that party’s legal liability; and,
  • WorkCover Queensland brings a contribution claim against that party,

the party joined to the claim will be unable to enforce their contractual indemnity clause to neutralise the contribution claim.

In many claims, the addition of section 236B(3) will allow contribution claims to be made by WorkCover, with third parties constrained in their ability to enforce indemnities against employers. However, the application of section 236B in a claim will depend upon:

  • who the parties to the relevant agreement are; and
  • the wording of the indemnity.

For instance, in an agreement where:

  • the parent company of an employer grants indemnity to a party; and
  • the agreement was not between the ’employer’ and the other party,

but the employer is referred to as part of a ‘contractor group’ or otherwise in the agreement, then section 236B may not apply to the agreement. In such a case, an entity related to the employer (such as a parent company) may remain liable for the indemnity granted to the other party.

Otherwise, the new Section 236B(3) may not operate to defeat actions in contract against employers by other parties (e.g. for breach of warranty or, for breach of an obligation to insure).

Once enacted, the amendment will apply to existing claims; if a settlement for damages has not been agreed or, a trial has not commenced.

To read the Bill in full, click here. To read the Queensland Parliament’s third reading speech, click here.

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

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What happens if you don’t have workers’ compensation insurance?

What happens if you don’t have workers’ compensation insurance?

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The labour market has changed considerably in recent years. We’ve seen an explosion of apps and websites that help businesses outsource services. It seems as though most of us are now consultants/freelancers/contractors of some description! In the construction industry alone, it’s not unusual to see services sub-contracted down the line through several entities before the first nail is hammered.

So, in this new world where everyone (and yet no one) is a boss – what happens with workers’ compensation insurance? And more importantly – what are the consequences of being uninsured?

Obligation to insure

In Queensland, an employer must, for each worker employed, insure and remain insured, for their legal liability to pay compensation and damages to their workers: section 48 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).

Workers vs contractors

The WCRA defines ‘workers’ for the purpose of workers’ compensation.

Under the Act, a worker is a person that is employed under a contract and who is an employee for the purpose of assessment for PAYG withholding under the Taxation Administration Act 1953 (Cth). Schedule 2 of the WCRA expands that definition, identifying particular circumstances where a person will be considered a worker.

Determining whether a person is a worker (and therefore whether a business is required to hold workers’ compensation insurance) is not always straightforward. Businesses should not assume that they are relieved from their obligation to insure, simply because they engage contractors instead of employees. Each arrangement a business has with an individual is often unique. A person who an employer considers is a contractor, may actually be a worker for workers’ compensation purposes.

Consequences of failing to insure

If an employer fails to take out workers’ compensation insurance within 5 business days of employing any worker or workers, WorkCover Queensland may impose a penalty of $33,522.50 (275 penalty units).

Recovery of compensation and unpaid premium

If a claim is made against an employer that holds no workers’ compensation insurance in Queensland, that claim will be managed by WorkCover. WorkCover is the statutory insurer and only WorkCover can pay compensation and damages to a worker.

Under section 57 of the WCRA, WorkCover may recover, from the employer, amounts that it has paid to a worker as compensation and damages. WorkCover may also recover from the employer a penalty equal to 50% of the amounts paid, as well as the unpaid premium.

Example workers’ compensation recovery

So what financial risk is posed to an employer that holds no workers’ compensation insurance? The below example illustrates the potential threat posed by a claim in Queensland:

Weekly compensation and medical benefits paid: $100,000

Common law damages paid: $500,000

Total: $600,000

Penalty (50% x $600,000): $300,000

Potential recovery: $900,000 + unpaid premium + $33,522.50 (penalty for failing to insure)

For businesses

Businesses that engage the services of individuals (including sole traders) should consider their obligation to hold workers’ compensation insurance. The cost of workers’ compensation premiums is dwarfed by the financial consequences of an uninsured claim.

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

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Workers’ compensation changes to affect contractual indemnities

Workers’ compensation changes to affect contractual indemnities

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On 14 June 2016, the Queensland Parliament introduced the Workers’ Compensation and Rehabilitation (National Injury Insurance Scheme) Amendment Bill 2016 (Qld) (Bill).

The Bill

The Bill is part of a broader social reform which includes the establishment of the National Injury Insurance Scheme for Queenslanders, to commence from 1 July 2016.

The Bill proposes to restore the original policy intent of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) and provide certainty to stakeholders after recent Court decisions have interpreted certain provisions of the WCRA in ways that could adversely affect the operation of the scheme.

If passed, the legislation will prevent employers from securing cover under their workers’ compensation insurance policies for contractual indemnities they have given to third parties for damages payable to workers. In the first reading speech for the Bill, the Minister for Employment and Industrial Relations said:

‘The Bill prevents the contractual transfer of liability for injury costs from principal contractors or host employers to employers with a workers’ compensation insurance policy such as subcontractors or labour hire employers and clarifies that an insurer will not be liable to indemnify an employer for a liability to pay damages incurred by a third party contractor under a contractual arrangement.’

The Amendments

The relevant sections of the Bill that will impact contractual liabilities are:

  • Clause 5: which proposes to amend the ‘Meaning of Damages’ in Section 10 of the WCRA to say:

‘(4) Further, a reference in subsection (1) to the liability of an employer does not include a liability to pay damages, for injury sustained by a worker, arising from an indemnity granted by the employer to another person for the other person’s legal liability to pay damages to the worker for the injury.’

  • And Clause 31: which will amend Chapter 5 of the WCRA as follows:

‘236B Liability of contributors

(1) This section applies to an agreement between an employer and another person under which the employer indemnifies the other person for any legal liability of the person to pay damages for injury sustained by a worker.

(2) The agreement does not prevent the insurer from adding the other person as a contributor under section 278A in relation to the employer’s liability or the insurer’s liability for the worker’s injury. 

(3) The agreement is void to the extent it provides for the employer, or has the effect of requiring the employer, to indemnify the other person for any contribution claim made by the insurer against the other person.

(4) In this section-

damages includes damages under a legal liability existing independently of this Act, whether or not within the meaning of section 10.’

For Employers

These amendments will mean that WorkCover Queensland will only be liable to indemnify an employer to the extent of the employer’s legal liability to the worker for damages under the WCRA. So, if an employer agrees to indemnify another party for damages beyond its legal liability under the WCRA, the workers’ compensation policy will not extend to cover those damages.

The changes may result in some employers exposed to liabilities for which they hold no insurance. However, in many claims, the addition of Section 236B(3) will allow contribution claims to be made by WorkCover, with third parties constrained in their ability to enforce indemnities against employers. What is unclear from the Bill and the WCRA, is whether an employer could secure cover for their liability to indemnify another party for ‘compensation’ under the WCRA (as opposed to ‘damages’). Also, the new Section 236B(3) may not operate to defeat actions in contract against employers by third parties (e.g. for breach of warranty or, for breach of an obligation to insure).

The industries that are most likely to be affected by the changes include: construction; mining; resources; and, transport. With these amendments, and the extension of the unfair contract terms regime to small businesses later this year, employers may wish to consider updating their service agreements to limit the risks to their business and follow current developments in the law.

The changes may see a rise in the number of employers requiring independent legal representation in common law claims. An employer who has agreed to indemnify another party may require independent legal advice about their contractual obligations, rights under the WCRA, the worker’s entitlements to damages under multiple regimes, apportionment and costs.

The Parliament has nominated the Finance and Administration Committee to consider the Bill.  To read the Bill in full, click here.  To read the Queensland Parliament’s first reading speech, click here.

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

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How to Detect Fraud in Personal Injury Claims

How to Detect Fraud in Personal Injury Claims

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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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Contributory negligence finding of 50% against pipeline worker

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

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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

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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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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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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.

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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.