Workers’ compensation

  • This field is for validation purposes and should be left unchanged.

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.

Contact us

Contact Form

  • This field is for validation purposes and should be left unchanged.
Kate DenningTip truck tray injury not caused by host employer negligence
Read more

Back injury answering work mobile arose ‘in the course of employment’

Back injury answering work mobile arose ‘in the course of employment’

Injury in the course of employment – Injury during the course of employment – Injury working from home – Injury working remotely – Workers Compensation Lawyers for Employers – Workers Compensation Lawyers Qld

Ziebarth v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 121

The Queensland Industrial Relations Commission (QIRC) has upheld an appeal of a worker for acceptance of his claim for a back injury suffered while running to answer a work call on his mobile phone.

Facts

Mr Robert Ziebarth (worker) was employed as the Fleet Service Manager at Blenners Transport Pty Ltd (employer). He was responsible for maintenance repair issues associated with the employer’s fleet of trucks. The worker was required to work for at least 55 hours per week. He was also required to make himself available to work additional hours if required and was required to be on-call from time to time. He was supplied with a work telephone for the purpose of performing his duties. Importantly, it was agreed that at all material times the worker was ‘on-call’.

The worker had been chastised on a number of occasions by his superior in the past for not answering his mobile phone. At 10:00 pm his mobile rang with a distinctive ring tone for a work related call, while he was in the shower. He got out of the shower and slipped on the wet tiles, injuring his back.

Issue

The main issue for determination was whether the injury arose out of or in the course of the worker’s employment for the purposes of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).

Determination

In a judgment delivered on 23 June 2015, O’Connor J, Deputy President of the QIRC determined the injury was suffered in the course of employment’ because:

  1. It was a term of the contract of employment that the worker make himself available to be on call from time to time.
  2. He was supplied a work telephone for the purpose of carrying out his employment duties, including those employment duties required of him whilst he was on call.
  3. He was on-call at the time of the incident.
  4. He was induced or encouraged to engage in the activity that he did.

The QIRC found that the work related injury was not, as submitted by the Workers’ Compensation Regulator, the running. The activity to be considered was the answering of the work mobile phone.

Considerations

With an increased demand for flexible work arrangements, this decision may be of interest to those in human resources and management.  Critical to this decision was the fact that the worker was ‘on-call’ and that the worker felt a need to answer the call because of ‘driver safety and the public safety’. A different outcome may occur in similar circumstances where staff elect to do work remotely but are not actually ‘on-call’.

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

Contact us

Contact Form

  • This field is for validation purposes and should be left unchanged.
Kate DenningBack injury answering work mobile arose ‘in the course of employment’
Read more

Bill to remove threshold to access damages in workers’ compensation claims

Bill to remove threshold to access damages in workers’ compensation claims

On 15 July 2015, the Queensland parliament introduced the Workers’ Compensation and Other Legislation Amendment Bill 2015 (Qld) (Bill).

If passed, workers who suffered an injury from 31 January 2015 onwards that have an accepted claim for compensation under the Workers’ Compensation and Rehabilitation Act 2003 (Qld), will be entitled to seek common law damages against their employer, regardless of how minor the injury may be.

For workers with injuries during the period 15 October 2013 to 30 January 2015 resulting in a Degree of Permanent Impairment (DPI) of 5% or less, the Bill provides for ‘additional lump sum compensation’ to be paid.

This legislation is likely to see a significant rise in the number of common law claims made against employers.

However, these changes will be welcomed by parties to claims regulated by the Personal Injuries Proceedings Act 2002 (Qld), who otherwise would have had no contribution from WorkCover (or self-insurers) in claims caught by the threshold.

The Bill also proposes to remove the ability of prospective employers to request the workers’ compensation claims history of job applicants.

The Bill does not address the Supreme Court decision of Byrne v People Resourcing (Qld) Pty Ltd & Ors

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

Contact us

Contact Form

  • This field is for validation purposes and should be left unchanged.
Kate DenningBill to remove threshold to access damages in workers’ compensation claims
Read more

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.

Contact us

Contact Form

  • This field is for validation purposes and should be left unchanged.

 

Kate DenningResponding to a request for a Compulsory Conference
Read more

‘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.

Contact us

Contact Form

  • This field is for validation purposes and should be left unchanged.

 

Kate Denning‘Actively Participating’ in a Compulsory Conference
Read more

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.

Contact us

Contact Form

  • This field is for validation purposes and should be left unchanged.
Kate DenningMaking a Mandatory Final Offer in Queensland
Read more

Worker awarded >$600k for sexual assault by manager

Case note: Moon v Whitehead [2015] ACTCA 17

Sexual Assault by Boss – Compensation for Sexual Assault – Compensation for Stress – Compensation for Mental Illness

Facts

Ms Sharon Whitehead, aged 39 (Whitehead) brought a claim for damages for trespass to the person against her supervisor at the Child Support Agency, Mr Michael Moon, aged 47 (Moon).  Whitehead alleged that she was sexually assaulted by Moon in a serviced apartment, while the pair were visiting Sydney for a work conference.

Whitehead’s claim for workers’ compensation benefits was rejected, so she pursued Moon personally.  The Supreme Court of the Australian Capital Territory (ACT) applied New South Wales law in deciding the case.

When Whitehead and Moon visited Sydney in 2007, a two bedroom, two bathroom apartment was booked, with Whitehead’s agreement.  On their first night in Sydney, the pair went out for coffee and visited three sex shops.  They then returned to the apartment separately.

When Whitehead returned to the apartment, she heard Moon’s shower running.  She decided to have a shower in her own bathroom.  While she was in the shower, Moon came in and asked if she needed help with the soap.  She told him to get out.  After she finished, she walked past his room in her pyjamas and he was naked on his bed.  Moon later entered her room, when she was in bed and her lights were out.  She asked him to leave.  He refused to leave until she kissed him.  She did so and intercourse followed.

Moon defended the claim on the basis that he had a physical relationship with Whitehead prior to the date of the alleged assault and that she had “frequently requested and/or consented to him [sic] contacting her person”.  The pair had previously engaged in sexual activity but not intercourse.

Following the incident, Whitehead suffered significant bleeding and pain.  She subsequently suffered a psychiatric illness and became suicidal.

It was Whitehead’s case that she had made known to Moon that she was not consenting to sexual intercourse, but that she stopped protesting when he did not desist because she was scared of him and concerned about any impact rejecting the appellant would have on her employment.

She was awarded $678,000 by the Supreme Court of the ACT.  Moon appealed to the Court of Appeal, on liability and quantum.

Issue

Moon set out a number of grounds of appeal.  However, the judgment concentrated on the question of consent.  Moon submitted that it was necessary for the state of mind of both participants to be taken into account, in determining the issue of consent.  The award by the Master for aggravated damages was also in issue.

Findings

In a judgment delivered on 22 May 2015, the ACT Court of Appeal found as follows:

  1. The real issue was a narrow one – whether Whitehead had consented to engaging in sexual conduct.
  2. There was ample evidence for the Master to find that Whitehead had not consented to intercourse.
  3. The test put forward by Moon for considering the question of consent was not supported by any authorities.
  4. A defence of ‘innocent mistake’ was irreconcilable with an intentional tort such as battery.
  5. The appeal was upheld in respect of the award for aggravated damages because Whitehead had not sought aggravated damages in final submissions at the hearing.  The damages award was reduced to $668,000.

Considerations

This case will be of particular interest to those working in the area of employment law.  It highlights a view taken by the ACT Courts that, despite a plaintiff’s actions, there is no substitute for consent and that consent should be clearly given.

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

Contact us

Contact Form

  • This field is for validation purposes and should be left unchanged.

 

 

 

Kate DenningWorker awarded >$600k for sexual assault by manager
Read more

Injuries from vibration or a sudden jolt

Injuries from vibration or a sudden jolt

Injuries from Vibration – Liability Claims Examples – Injuries from heavy equipment – Compensation pre existing condition – Injuries in Mining – Injuries in Coal Mining – Truck Injury Lawyer Blog – Truck Injury Lawyers – Truck Injury Compensation

In industries that use heavy equipment, claims sometimes arise out of vibratory forces or sudden jolts. Only a handful of Australian judgments have been delivered over the past decade in these types of cases. Some take away points from those decisions are as follows:

Previous complaints

In a vibration case, the number of complaints made about the equipment or the road surface will be relevant. For instance, in Robertson v Gillman Bros Mining Contractors Pty Ltd [2007] WASCA 36, the trial judge was not satisfied that the level of complaints suggested any wrongdoing by the Defendant because the complaints were ‘no more than would necessarily be expected and unavoidable in’ the harsh environment of underground mining.

Condition of equipment

The extent of any damage caused by a jolt, will be relevant to determining the impact force: Kelly v Humanis Group Limited [2014] WADC 43. In Kellythe Plaintiff’s dump truck was struck by a fully loaded excavator bucket. However, due to the limited damage to the Plaintiff’s dump truck, the Court concluded that the force of the impact was less than the Plaintiff described in his evidence.

For vibration cases, the condition of the seating, mirrors, suspension and any modifications to the equipment may also be taken into account: Russell v Hancock Farm Company Pty Ltd [2013] QDC 129. In Russell, the Court ultimately found for the Plaintiff because of the general condition of the equipment and the system of work and not because of the vibratory forces to which the Plaintiff was exposed.

Pre-start checklists, inspection and maintenance records, diaries, photographs and similar documents, will assist the Court, in determining the condition of the equipment.

Reporting of the incident

As with all personal injury cases, the timing of the Plaintiff’s report about the event will be taken into account. In Kelly, the Plaintiff’s failure to report the incident immediately afterwards (along with the limited damage to the dump truck) was a factor which led to a finding for the Defendant.

Pre-existing degeneration

The Plaintiffs in these cases often have underlying or pre-existing degeneration. The Defendant will bear the burden of proving that the Plaintiff would have suffered symptoms, regardless of the event. However, where the evidence can identify significant degeneration, substantial discounts can be made: Russell v Hancock Farm Company Pty Ltd.

Expert evidence

Expert liability evidence has assisted the Court in the cases mentioned above, in deciding issues such as:

  • the extent of the impact force from a jolt.
  • whether vibration could have caused injury.
  • the period over which an injury through vibratory forces could occur.
  • the condition of the equipment or road surface.

Summary

These kinds of cases are often complex and expensive to litigate for the parties. With claims arising in the mining, construction and agricultural industries, claims often involve multiple parties, disputes on liability and quantum, as well as cross claims in contract and tort. The cases that are contested, commonly involve questions about the Plaintiff’s credit and underlying degeneration.

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

Contact us

Contact Form

  • This field is for validation purposes and should be left unchanged.

 

Kate DenningInjuries from vibration or a sudden jolt
Read more

Time for seeking review of workers’ compensation decision restricted

Case note: Blackwood v Pearce [2015] ICQ 012

Workers Compensation Lawyers for Employers – Workers’ Compensation Regulator – WorkCover Queensland – Workers Compensation Extension – Workers Compensation Application for Review

The Industrial Court of Queensland has considered the power of the Workers’ Compensation Regulator (Regulator) to extend the time for applying for review of a decision under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA).

Under section 542(2) and (3) of the WCRAthe Regulator may grant a request for an extension to apply for review of a decision by WorkCover or a self-insurer:

  1. if it is satisfied ‘special circumstances’ exist; and
  2. provided the request is made within three months of the applicant receiving the decision.

In Cloncurry Shire Council v Workers’ Compensation Regulatory Authority & Anor [2006] QSC 362, the Supreme Court found that a decision by Q-Comp to grant an extension outside of the three month period, was not invalid.

However, in a decision delivered on 28 April 2015, Martin J, President of the Industrial Court, disagreed with the Supreme Court’s interpretation of section 542.

Martin J found that if a request to extend time is not made within the three month period, the WCRA gives no power to the Regulator to grant an extension.

Martin J adopted a literal interpretation of the legislation.  Until the section is tested again at Supreme Court level, it seems likely that the Regulator (who was the Appellant in the case) will adopt the reasoning of Martin J.  The decision should be welcomed by insurers and employers.

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

Contact us

Contact Form

  • This field is for validation purposes and should be left unchanged.
Kate DenningTime for seeking review of workers’ compensation decision restricted
Read more

NSWSC finds for employer in step case

Case note: Vincent v Woolworths Ltd and Vincent v Counterpoint Marketing & Sales Pty Ltd [2015] NSWSC 435

Public Liability Case Law – Public Liability NSW – Public Liability Case Examples – Public Liability Case Studies – Public Liability Cases – Host Employer Responsibilities – Host Employer Duty of Care

Facts

The Plaintiff, Ms Vincent (Vincent), was a store merchandiser employed by Counterpoint.

As a merchandiser, her job involved product presentation, including the creation of promotional displays. Merchandisers display products according to a planogram (a plan/diagram prepared to make a product more appealing to customers).

Vincent was arranging products in a Woolworths store according to a planogram, with the use of a safety step.  A male customer was pushing his trolley down the centre of the aisle in which she was working.  He was not looking at Vincent, who was working to his right.  Vincent was on the step and concentrating on her task.  As she stepped down from the safety step, she collided with his shopping trolley.

CCTV footage showed that she looked to either side before stepping down but did not turn her head fully, in either direction, to check for customers.

Issue for determination

Vincent brought separate proceedings against Counterpoint and Woolworths.  Vincent argued that Woolworths and Counterpoint failed to take appropriate precautions against the risk of her suffering injury in the course of her work.

Woolworths accepted that it owed Vincent a duty of care but argued that it was the ‘bare’ duty of an occupier of premises.

Vincent said that Woolworths should have warned of the risk that she could collide with a customer, provided manual assistance or provided a ladder for her to use.

Findings

The Supreme Court of New South Wales made these findings:

  1. Woolworths owed visiting merchandisers, ‘a duty to exercise reasonable care to avoid unnecessary risks of injury arising out of the ongoing conduct of Woolworths’ operations’.
  2. If Vincent had fully turned her head, she would not have stepped down and collided with the trolley.
  3. The safety step was adequate in the circumstances and allowed her to access lower shelves without restriction.
  4. Placing a barricade around Vincent would have created difficulty and inconvenience to her work.
  5. The fact that the risk assessment didn’t identify the potential for collision with customers, did not amount to a breach of duty of care by Woolworths.
  6. It was reasonable for the employer to leave the simple task of stepping onto and off a safety step to the ‘good sense and ordinary care of a mature aged worker’.

The Court dismissed Vincent’s case and found that neither Defendant was negligent.  The case may be of assistance to employers seeking to defend similar cases.  It also clarifies the scope of the duty of care owed to contractors who work within retail stores.

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

Contact us

Contact Form

  • This field is for validation purposes and should be left unchanged.
Kate DenningNSWSC finds for employer in step case
Read more

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.