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Bill to stamp out the ‘insidious practice’ of claim farming in motor accident claims

Bill to stamp out the ‘insidious practice’ of claim farming in motor accident claims

On 14 June 2019, the Queensland Parliament introduced the Motor Accident Insurance and Other Legislation Amended Bill 2019 (Qld) (Bill) to address the practice of ‘claim farming’ in claims for personal injuries relating to motor vehicle accidents. 

What is ‘claim farming’?

The term ‘claim farming’ is not defined in the Bill

In the first reading speech of the Bill, Deputy Premier Jacqui Trad described the practice of claim farming as follows:

Claim farming involves anonymous persons cold calling members of the public about whether they have been involved in a motor vehicle accident.  They falsely identify themselves as calling on behalf of an insurer, the [compulsory third party] CTP Regulator – the Motor Accident Insurance Commission – or another government agency, allegedly with the sole purpose of helping the individual make a CTP claim. 

They use high pressured tactics and deceptive behaviour to elicit the individual’s personal information and agreement to submit a claim, often with the lure of quick and easy compensation.  This information is then sold, for a fee, to a lawyer or claims management service provider to handle the claim.

The practice of claim farming is widely condemned by lawyers working in personal injuries, as well as insurers across all types of personal injury claims.  For members of the public, the practice signals a breach of privacy through what is assumed to be, unlawful disclosure of their personal information.

Since February 2019, over 500 complaints have been submitted to the Motor Accident Insurance Commission (the Commission) about claim farming.

The Bill

The Bill aims to address the practice of claim farming through two major reforms:

  • a prohibition on the act of cold calling or personally approaching another person without their consent and soliciting or inducing them to make a CTP claim; and
  • making it an offence, for anyone to pay claim farmers for the names of potential CTP Claimants or to receive payment for a claim referral or potential claim referral.

The Amendments

The Bill proposes a number of amendments to the Motor Accident Insurance Act 1994 (Qld) (MAIA).  These include the following:

  1. The requirement of a law practice to complete a Law Practice Certificate (Certificate) (in a form approved by the Commission and verified by statutory declaration) and provide the Certificate to a Claimant prior to the commencement of a claim, after the start of a claim or prior to finalisation of a claim.
  2. The Certificate must state:
    • that the supervising principal and each associate of the law practice have not:
      • given, agreed to give, or allowed or caused someone else to give consideration to another person for a claim referral or potential claim referral for the claim in contravention of section 74(1); or
      • received, agreed to receive, or allowed or caused someone else to receive consideration from another person for a claim referral or potential claim referral for the claim in contravention of section 74(2); or
      • if section 74 does not apply to the supervising principal or an associate to the law practice – the circumstances mentioned in section 74(3) why it does not apply.
      • the supervising principal and each associate of the law practice have not personally approached or contacted the Claimant or solicited or induced the Claimant to make the claim in contravention of section 75; or
      • if section 75 does not apply to the supervising principal or an associate of the law practice – the circumstances mentioned in section 75(3) why it does not apply.
  3. A prohibition against a person (a payer) giving, agreeing to give or allowing or causing someone else to give consideration to another person (a payee) for a claim referral or potential claim referral. 
  4. A prohibition against a person (a payee) receiving, agreeing to receive or allowing or causing someone else to receive consideration from another person (also a payer).
  5. A prohibition against a person personally approaching or contacting another person and soliciting that person, the authorisation of the Commission to make application to the Court for an injunction restraining a person who the Commission reasonably believes has engaged, is engaging or is proposing to engage in conduct, whether in Queensland or elsewhere, that contravened, or is contravening the prohibitions referred to above.

Other changes

In addition, the Bill also sets out to:

  1. Amend to the Motor Accident Insurance Regulation 2018 (Qld) and the prescribed Notice of Claim form, by requiring a Claimant to provide additional information in their Notice of Claim including:
    • the Claimant’s Medicare number;
    • whether the Claimant requires an interpreter and, if so, the language of the interpreter;
    • a diagram showing, to the best of the Claimant’s knowledge, where the driver of each occupant of a vehicle was sitting in the vehicle at the time of the accident;
    • telephone numbers and email addresses of the owner and driver of each vehicle, involved in the accident;
    • telephone numbers and email addresses of the witnesses to the accident;
    • whether a claim has been made under a comprehensive insurance policy or a third party property damage policy and if so, the insurer for the policy, the policy number and any claim number relevant to the accident;
    • more detailed information in the medical Certificate which accompanies the Notice of Claim, including the date the Claimant was first examined by a doctor and their Health Practitioner Regulation National Law unique identifier;
    • the date the Claimant first consulted a lawyer about the possibility of making a claim;
    • the date the Claimant first retained a law practice to act for the Claimant in relation to the claim.
  2. Extend the 50/50 rule cap on legal costs in speculative personal injury claims to interstate law practices.
  3. Provide the Commission with additional powers.  The addition of a new Part 5B proposes to give special investigation powers to the Commission and most notably includes a section prohibiting an investigated person, or an associated person, from answering a question put to them by an investigator which:
    • might incriminate them; or
    • require them to disclose privileged client communication.

Penalties

A penalty in excess of $39,000 per offence may apply for:

  • contraventions of the claim farming provisions;
  • a failure by a law practice to provide a Certificate; or
  • the provision of a Certificate by a law practice which is false or misleading. 

Additionally, a law practice who contravenes the claim farming prohibitions will not be entitled to recover any fees or costs, including disbursements, that relate to the provision of services for the claim and will be required to repay any amount received that relates to the services to the person from whom it was received.

Exceptions to claim farming

Under the Bill, ‘claim farming’ is not defined. However, ‘consideration’ is defined to mean a fee or other benefit.  Consideration does not include a gift, other than money or hospitality, if the gift or hospitality has a value of $200 or less. 

A ‘claim referral’ does not include the advertisement or promotion of a service or person that results in a claim using the service or person if the advertisement or promotion is made to the public or a group of persons.  For example, an advertisement of services provided by a law practice on the website or in the newsletter of a sporting association or charity, would not contravene the legislation.

Considerations

The first reading speech suggests that the Bill is aimed at eliminating the unsolicited contact with members of the public by persons or organisations, who attempt to induce individuals to make CTP claims and sell their personal information.

Concern has been expressed among members of the profession that the prohibitions contained in the Bill may have unintended consequences for law practices with relationships with community organisations such as unions, sports clubs and community legal centres. However, by contrast, such organisations do not usually make unsolicited contact with individuals to induce them to make a claim.

If a law practice is paying any entity, or person, a monetary amount for a singular claim referral or potential claim referral (or multiple referrals), that law practice should review its arrangements, as against the Bill.  However, law practices that do not engage in such practices, should not be concerned.

While the potential penalties are high, the Bill only targets claim referrals in CTP claims and therefore, leaves open the potential for claim farmers to target individuals with other types of personal injury claims.

The amendments to Notice of Claim forms will allow CTP insurers to gather more information, at the start of a claim, than ever before.  This data will better identify potential referral relationships between particular health care providers and law practices.  Health care providers who refer prospective Claimants to a law practice may, or may not, contravene section 67 of the Personal Injuries Proceedings Act 2002 (Qld).  Under the MAIA in its current form, the Commission may impose licence conditions which require CTP insurers to provide that data so as to allow investigations into referral relationships between doctors and lawyers.

To report a claim farming incident relating to a motor vehicle accident, contact the Commission through this link.

Kate DenningBill to stamp out the ‘insidious practice’ of claim farming in motor accident claims
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QSC awards $800k in interest in business insurance claim

QSC awards $800k in interest in business insurance claim

Case note: Mitchell Ogilvie Menswear Pty Ltd v Rapid Edge Pty Ltd [2019] QSC 136

Mitchell Ogilvie Menswear Pty Ltd (the Plaintiff) stocks luxury Italian suits and business shirts, made-to-measure suits, everyday business attire, casual wear and high-end accessories.  On 31 May 2019, the Supreme Court of Queensland awarded the Plaintiff the sum of $1,278,708 in damages and interest of $795,799, for amounts recoverable against the Defendant following a fire in 2010.

Background

The Plaintiff’s stock was damaged in a fire on 29 September 2010 which originated from a vacuum cleaner, in the basement tenancy of a jewellery business, close to the Plaintiff’s store.  The fire caused soot and smoke to enter the Plaintiff’s premises.  The Plaintiff’s store was located at 190 Edward Street and the fire caused a fine layer of soot to cover most, if not all, of the clothing stock in-store, the store fit out, floor coverings, horizontal surfaces and inside drawers. 

At the date of the fire, the Plaintiff had in place a Commercial Special Risks Policy (Policy) of insurance with Allianz Australia Insurance Ltd (Allianz).  The Plaintiff made a claim against its Policy, which was accepted. 

Attempts were made by Commercial Industrial Restoration Insurance Services to clean and decontaminate the stock, which included:

  • pre-vacuuming all stock, contents, fixtures and fittings throughout the property;
  • chemical dry sponging fabric based items;
  • removing contaminants from fixtures and fittings by way of wet wipe, alkaline treatment and then neutralise;
  • arranging for a commercial carpet cleaner to attend and clean all carpets and affected upholstery, clean, scrub and re-seal parquet floors; 
  • after-hours ozone treatment of the premises as an odour control measure.

The results of the cleaning and decontamination were variable.  Some items looked worse than before they were cleaned.

Under the terms of the Plaintiff’s Policy, Allianz was entitled to retain the damaged stock when it made a payout under it and to recoup the salvage value of that damaged stock.

Allianz proposed two options as to how to deal with the salvage of the damaged stock and these were:

  • an assessment of the damaged stock with a payment to the Plaintiff equivalent to its wholesale costs, or value net of GST, where the property would become the property of Allianz and later sold on behalf of Allianz for salvage value; or
  • for the Plaintiff to offer to retain the damaged stock at its agreed value, following which the Plaintiff would then be responsible for dealing with the damaged stock, for example by holding a fire sale and bearing the risks of the outcome of that process.

Mr Ogilvie had a number of concerns about handing over the damaged stock to Allianz and offered to pay $150,000 to $200,000 to Allianz in exchange for the damaged stock.  This represented 10% to 15% of the wholesale value of the stock.

Allianz’s appointed loss adjuster, Cunningham & Lindsay, did not consider that the Plaintiff’s offer represented the true salvage value for the damaged stock and engaged, Mr Webber, Managing Director of Lloyds Auctioneers & Valuers, to prepare a salvage valuation and a proposal for the sale of the damaged stock by public auction. 

Mr Webber produced a report to Allianz advising that his estimate of realisation of the damaged stock was between $220,000 and $450,000, with net guaranteed proceeds of sale of $195,000. 

Further to Mr Webber’s valuation, the Plaintiff increased its offer to Allianz to $225,000 for the damaged stock.

The Plaintiff then proceeded to sell the stock in-store in a fire sale and by late 2011, almost all of the damaged stock was sold.  The business’ records in relation to the sale of salvaged stock did not accurately identify the sale price of the salvaged goods, in part due to the sku system used with the sale stock.

The wholesale value of the stock within the Plaintiff’s tenancy at around the time of the fire was almost $1.7M.

Issues at trial

The issues for consideration by the Court were:

  • whether the Plaintiff’s proposed measure of the property damage it suffered, namely the diminution in value of the stock that came to be damaged was appropriate. The Plaintiff sought the difference between the wholesale value of the stock just before the fire and its salvage value shortly after the fire;
  • the salvage value of the damaged stock after it was cleaned and treated;
  • the value of the undamaged stock.

Findings of the Court

The Defendant admitted liability in full for property damage and economic loss caused to the Plaintiff as a result of the fire.  The Defendant abandoned or did not press a defence of “avoided loss” at trial.

The Court observed that where a Defendant’s tort has caused damage to a Plaintiff’s existing property, the general compensatory principle is that the Plaintiff should be put into as good a position as if its property had not been damaged.  To do so, there was a choice between:

  • awarding the diminution in value of the property; and
  • the cost of cure, comprising the cost of replacement or, if possible, repairing the goods.

From the judgment, it would appear that the Defendant had a theory to the effect that the Plaintiff had sold the damaged stock for significantly more than the salvage value which he paid Allianz.  However, the Court ultimately preferred the opinion of Mr Webber as to the stock’s value; over the Defendant’s theory and its forensic evidence (about which the Court expressed a number of concerns).

The Court concluded that the appropriate measure of loss for the Plaintiff’s property damage loss was to be determined by deducting from the wholesale value of the goods ($1,683,974), the following amounts:

  • salvage value of the stock being $225,000;
  • value of undamaged stock $184,376;
  • purchase price of new stock $34,231.

The Plaintiff was also allowed the costs incurred in carrying out the decontamination and cleaning of the stock ($22,085.28), forensic examiner report costs ($10,061.24) and loss adjuster costs ($6,195), by way of damages – not costs.

This brought the total of the damages judgment in favour of the Plaintiff to $1,278,708. 

The Court also ordered to pay interest from September 2010 to 31 May 2019 in the sum of $795,799.

Considerations and costs

The published judgment does not deal with the question of costs.  However, with the litigation running from 2014 to 2019, it seems likely that the costs and interest on the claim shall exceed the total value of damages awarded.

This decision will be of interest to insurers in respect of their recovery actions.  An unfavourable finding for the Plaintiff in this case could have had industry wide implications for how insurers pay out claims to insureds.

Kate DenningQSC awards $800k in interest in business insurance claim
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QCA awards 42 year old care worker $480k for ankle, hip and back injuries

QCA awards 42 year old care worker $480k for ankle, hip and back injuries

Case note: RSL Care Limited v Wallace [2019] QCA 23

A 42 year old residential care worker has successfully sued her employer, RSL Care Limited (the Appellant) for an injuries to her ankle, hip and back arising out of a slip in her workplace.

This was an appeal from a decision of the District Court of Queensland. The appeal was heard on 10 April 2018. Judgment was delivered on 19 February 2019.

The decision at first instance

Ms Jillian Wallace (the Respondent) was employed by the Appellant, as a residential care worker. Her duties included showering residents. The Respondent suffered personal injuries when she slipped and fell on 27 March 2008, while showering a patient who was confined to a wheeled shower chair, while showering.

The Respondent was crouched whilst showering the patient’s legs and as she went to get up, her left foot slipped and she ‘went over’ as her ankle twisted outwards. 

The Respondent said that the floors were slippery when they were wet and even more so when they were contaminated with soap or shampoo.  While the Respondent made no complaint to anyone in a position of authority about the slipperiness of the floor prior to the incident, other staff gave evidence to the effect that the floor was slippery when wet. 

Both parties led expert engineering evidence about the slipperiness of the floor.

The Court preferred the Respondent’s expert evidence from Mr Brendan McDougall of Intersafe, to that of Paul Stephenson of Kinetic Engineers, for the Appellant.  Friction tests undertaken by Mr McDougall were confined to wetting the floor surface with water.  Testing of the area in which the Plaintiff was working revealed the floor surface to be well below the suggested minimum requirements for the relevant Australian Standard. 

The primary judge found that regardless of the cause, the surface where the Respondent was required to work was inadequate and, as a result she slipped, suffering injuries.  The Respondent identified that the Appellant ought to have had in place a system of appropriately installing or maintaining the floors of the ensuites.  The Appellant did not do so and accordingly, the primary judge found the Appellant negligent.

Issue on appeal

On appeal, the Appellant argued that the primary judge, ‘erred in finding a breach of duty upon an unsound factual foundation concerning the slip standard of the floor ensuite’. The Court of Appeal summarised the Appellant’s argument as follows:

  1. The primary judge relied upon expert opinion as to the slip resistance of the floor; 
  2. The expert opinion was based upon testing performed five (5) years after the Respondent’s accident; and
  3. The conclusion that the Appellant had been negligent amounted to speculation and conjecture.

By cross-appeal, the Respondent challenged the primary judge’s award for future economic loss on the basis that it was against the evidence and was manifestly inadequate.

Findings of the Court of Appeal on liability

The Appellant’s appeal was unanimously dismissed by the Court of Appeal, with the judgment written by Justice Bond. The Court determined that the combination of:

  1. Mr McDougall’s testing results measuring the inadequacy of slip resistance; 
  2. Mr McDougall’s evidence concerning likely explanations for the measured inadequate slip resistance; 
  3. Mr McDougall’s evidence as to the importance of regular testing and the ease of remedying identified concern with slip resistance; 
  4. the evidence as to the Appellant’s failure to comply with manufacturer’s guidelines both before and after the incident; and
  5. the lay evidence which described a subjective view of the floors at the time of the accident which was consistent with the Respondent’s case and inconsistent with the Appellant’s case,

was such that it was open for the primary judge to find in favour of the Respondent. The Court also concluded that the failure by the Appellant to adduce any other evidence addressing how the flooring was dealt with (before or after the accident) allowed the primary judge to more readily draw that inference.

Findings of the Court of Appeal on quantum

The cross-appeal was also dismissed by the Court. The Court of Appeal noted that while there was a body of evidence supporting a finding of a higher award on future economic loss, such a finding was dependent upon the primary judge accepting the Respondent’s evidence about the impact of her ankle injury. The primary judge found that the Respondent’s evidence concerning her on-going difficulties resulting from her injury could not be accepted as there were misgivings about her evidence. The Respondent’s claim for future economic loss based on notional earning capacity of $1,000 per week net and a residual earning capacity of $660 was not accepted by the Court. Using the 5 per cent tables, the Court allowed the Respondent an ongoing weekly loss of $100. The Court of Appeal was unwilling to disturb that finding. The Respondent was awarded $78,300 for future economic loss.

At trial, the Respondent submitted that she should be entitled to an award of $1,177,570.94. The Appellant submitted that an award in the range of $290,589.64 to $637,887.54 was appropriate.  The award by the primary judge of $480,784 under the various heads of damage was broken down as follows:

General damages $65,000

Interest $9,300

Past economic loss $201,570

Interest $25,944

Past superannuation $18,140

Future economic loss $78,300

Future superannuation $8,613

Specials $32,460

Interest thereon $5,676

Future pharmaceuticals $3,868

Future GP expenses $22,241

Past paid care $1,680

Future care $7,992.

Costs

Further to a hearing on costs on 21 June 2017, the Respondent was awarded costs of the action on a standard basis. Her application for certification for two counsel was dismissed. Proceedings were commenced in the Court in April 2013. The Appellant was awarded costs thrown away by reason of an adjournment of the trial on 7 November 2016. Both the Appellant and the Respondents appeals were dismissed with costs.

Considerations

This case should be of concern to defendants. It demonstrates that the passage of time will not necessarily be an obstacle to a plaintiff, where:

  1. the plaintiff has lay and expert evidence in support of their case; and
  2. the defendant cannot offer a satisfactory explanation as to how a risk was dealt with,

irrespective of the possibility that the hazard may have changed between the date of the incident and the time of testing by an expert. 

In this case, the Court of Appeal was unwilling to interrupt the trial judge’s findings on liability and accepted that it was open to the judge to prefer the opinion of an expert as to slipperiness of the surface, over the subjective recollections of lay witnesses. 

Kate DenningQCA awards 42 year old care worker $480k for ankle, hip and back injuries
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Criminal conduct and claims for personal injuries

If a person commits a crime, can they still claim damages for personal injuries arising out of the event? Well… it depends.

The Civil Liability Act 2003 (Qld) (CLA) and the Criminal Code Act 1899 (Qld) (CCA) each limit the circumstances in which a person may claim damages for personal injuries sustained in connection with a criminal offence.

In the recent decision of Brown v Logan City Council [2019] QSC 46, the Supreme Court of Queensland considered whether a claim could be defended by the Council on the basis that the Plaintiff had no entitlement to sue in the first place. 

Background

The Plaintiff (Ms Brown) was injured in a motor vehicle accident when her vehicle passed onto the wrong side of the road at a sweeping bend and she collided with an oncoming vehicle.

The Plaintiff was charged with dangerous operation of a vehicle. She pleaded guilty to the offence, which was dealt with on indictment in the District Court. 

She sued the Council for the injuries she sustained from the accident. She alleged failures on the part of the Council with respect to the design, construction and maintenance of the road. In response to the Plaintiff’s claim, the Council pleaded that the Plaintiff was not entitled to commence proceedings by virtue of section 6 of the CCA and, in the alternative, was not entitled to an award of damages by operation of section 45 of the CLA. 

After a Request for Trial Date was filed, the Plaintiff made application to the Court, seeking to strike out the paragraph of the Council’s pleading that relied upon section 6 of the CCA.

Issue for determination

Section 6 of the CCA states relevantly as follows:

‘Civil remedies

(2) A person who suffers loss or injury in, or in connection with, the commission of an indictable offence of which the person is found guilty has no right of action against another person for the loss or injury.

Section 45 of the CLA provides:

’45 Criminals not to be awarded damages

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

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

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

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

(4) It does not matter whether the person whose conduct is alleged to constitute an indictable offence has been, will be or is or was capable of being proceeded against or convicted of an indictable offence.

(5) If the person has been dealt with for the offence, it does not matter whether the person was dealt with on indictment or summarily. 

The issue for determination by the Court was whether section 45 of the CLA operated to repeal section 6(2) of the CCA.

The Plaintiff’s Submissions

The Plaintiff argued that section 45:

(a) ‘covers the field’, so there is no need for section 6;

(b) other Australian jurisdictions have a provision similar to section 45 in their legislation, which fulfills a similar purpose; 

(c) if section 6 remains in force, then section 45 has no real legal effect; and

(d) the two sections cannot stand together and work cumulatively. 

The Judgment

In refusing the Plaintiff’s application, His Honour Justice Davies observed that there must be very strong grounds to support an implied repeal and displace the general presumption that both provisions continue to operate. His Honour was not satisfied that such grounds were made out in the Plaintiff’s case, finding: 

(a) the two sections operate very differently; 

(b) section 45 limits the liability of a potential defendant, whereas section 6 removes the potential plaintiff’s cause of action; 

(c) the CLA does not limit the protection from liability given by a provision of another Act or law: section 7(2).

The decision of the Court disposed of the Plaintiff’s claim at interlocutory stage, without the need for a trial. 

Considerations

In Brown’s case, the Application was not heard until after a Request for Trial Date was filed. However, the same claim resolution strategy could be used to bring a claim to an end during the pre-Court stage, on application by a Respondent. 

Having regard to the reasoning in Brown, the relevant legislation in Queensland and other decisions from the Courts, the current state of play with respect to criminal conduct and Queensland claims for personal injuries may be summarised as follows:

(a) a conviction for an indictable (serious) offence, dealt with on indictment will disentitle a person from claiming damages for personal injuries in connection with the offence: section 6 CCA; Brown v Logan City Council [2019] QSC 46;

(b) a conviction for an indictable offence, dealt with summarily, will be deemed to be a conviction for a simple offence and will not engage section 6 of the CCA, so as to disentitle a potential plaintiff: Corliss v Gibbings-Johns [2010] QCA 233;

(c) the liability of a potential defendant may be limited (in entirety) by the potential plaintiff’s commission of a criminal offence, if it materially contributes to the risk of harm: section 45 CLA; 

(d) if it would be ‘harsh and unjust’ to deprive a potential plaintiff from an award of damages under section 45, their damages are to be reduced by 25% or more: section 45(3) CLA;  

(e) where a plaintiff makes clear and repeated requests to withdraw from a joint illegal enterprise, they may be owed a duty of care: Miller v Miller (2011) 242 CLR 446;

(f) where a plaintiff actively participates in a joint illegal activity (such as a joyride in a stolen vehicle), they may be owed no duty of care and section 45 may operate to limit their damages to $nil: Captain v Wosomo [2017] QSC 86; 

(g) section 45 also applies to the criminal conduct of deceased persons in wrongful death claims: section 64 Civil Proceedings Act 2011 (Qld).

Kate DenningCriminal conduct and claims for personal injuries
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Claims wrongly denied for non-payment of a premium

Most of us have an instalment contract of general insurance. An instalment contract is one under which the insured pays the premium in seven (7) or more instalments per year. Comprehensive car insurance or home and contents insurance policies are examples of such products.

But what happens if you miss a premium and an ‘event’ occurs under the policy? Your policy will contain a clause about this.

The Policy wording

By way of example, the current Youi Insurance Ltd home and contents Product Disclosure Statement provides as follows:

‘Make your premium payments/s.

You must ensure that your first and any subsequent instalment premium payments are made by the due dates in order to be covered, if any payment remains unpaid for a period of 14 calendar days or more, we may refuse to pay your claim. If any payment remains unpaid for a period of one calendar month or more, we may cancel your policy as permitted by law’

The Insurance Contracts Act 1984 (Cth)

The Insurance Contracts Act 1984 (Cth) requires insurers to state the circumstances in which they will limit their liability, or refuse to pay a claim in the event of non-payment of a premium.  Section 39 of the ICA states:

‘Where a provision included in an instalment contract of general insurance has the effect of limiting the liability of the insurer by reference to non-payment of an instalment of the premium, the insurer may not refuse to pay a claim, in whole or in part, by reason only of the operation of that provision unless:

(a) at least one instalment of the premium has remained unpaid for a period of at least 14 days; and

(b) before the contract was entered into, the insurer clearly informed the insured, in writing, of the effect of the provision.’

Claim denials by insurers

If an insured fails to pay a premium by the due date, many insurers send a reminder letter shortly afterwards saying something like:

‘We tried to debit your Home insurance premium of $400.00 on 10/12/2018 and we’ve been notified by your credit card provider that we were unsuccessful.
For your continued protection we’ll try again on 21/12/2018.’

If a premium has remained unpaid for at least 14 days and an ‘event’ occurs under the policy, some insurers deny the claim at first instance, purporting to rely upon a clause just like Youi’s above.

A decision to reject a claim on the basis of an insured’s non-payment of a premium, before a policy is cancelled should be challenged through a process like those described in our previous article, 7 Tips for dealing with insurance claims. In some circumstances, a decision to reject a claim for an event occurring after cancellation may be contestable too, if the cancellation itself was invalid.

What many insureds do not realise is that a communication like this reminder notice can operate to extend the due date for the premium. This is important because if the due date for the premium is reset, an insurer cannot refuse to pay a claim for an event which occurs within 14 days of the ‘new’ due date for the premium.

Decisions of the Financial Ombudsman Service (now ACFA)

There are a number of decisions by the Financial Ombudsman Service (FOS) on this issue in favour of insureds and these include:

(a) Case number: 213834:

In this case, the Financial Services Provider (FSP) was unable to direct debit an account on the due date for the first instalment of the premium. The FSP subsequently cancelled the policy and an event occurred after the cancellation of the policy. In arriving at its decision in favour of the applicant, the FOS noted as follows:

’28. However, in considering the evidence submitted by the FSP, the Panel notes the FSP’s letter of 23 June 2010 which states ‘A cancellation letter was sent on 4 May 2010 advising if payment is not received by 14 May 2010 then policy (sic) will be cancelled’. This letter extends the period for payment to 14 May, indicating that cover will continue subject to payment, but that if a payment was not made by 14 May it would cancel the policy.’

It follows then, that a reminder letter such as the one above ‘extends the period for payment’. Once the due date for the premium is extended, the 14-day period under section 39 of the ICA cannot begin to run until the ‘new’ date for payment of the premium and cover must be extended for a claim arising prior to the expiration of 14-days.

(b) Case number 241836:

In this case, the FSP was unable to direct debit an account on the due date for the premium. The applicant submitted a claim one (1) month later for an event and the FSP denied cover on the basis that the policy had been cancelled and that it was entitled to decline cover as the payment remained unpaid for 14 days. In arriving at its decision in favour of the applicant, the FOS determined:

’36. A critical matter is that I disagree with the FSP’s argument that the Overdue Notice did not change the due date for the monthly instalment. Consistent with earlier Determinations of this Service, my view is that when the FSP advised in the Overdue Notice that it ‘will try again to deduct the payment on 1 January 2011’ the FSP has effectively extended the due date to pay the monthly instalment premium to 1 January 2011.

37. This conclusion is fundamental to the decisions which must be made as to the various points advanced by the FSP.

38. In my opinion, in order for the FSP to successfully deny a claim on the ground of non-payment of an instalment premium, the accident or event giving rise to the claim must have occurred after the 14th day from the date the premium was due. Otherwise stated, the accident or event must have occurred on the 15th day.

39. Once the conclusion is reached that the due date for payment of the instalment premium was 1 January 2011, 14 days thereafter is 15 January 2011. As the collision occurred on 15 January 2011, the FSP was not entitled to refuse to meet the claim arising from this collision on the ground of non-payment of the premium. The 14 days does not expire until midnight on the 14th day.’

It should be beyond doubt, that the position of the FOS (now ACFA) is that a reminder notice, extends the due date for payment of premium and that denial of non-payment of premium cannot be effective until after midnight on the 14th day following the ‘new’ due date for a premium.

Considerations

Insurers who:

(a) offer instalment contracts of general insurance; and

(b) deny claims on the basis of non-payment of a premium,

may find themselves squarely in the gun. On one view, this conduct could be described as a breach of the duty of utmost good faith or, misleading and deceptive. A want of intention to mislead or deceive does not matter. 

Insurers who adopt this sharp practice on mass across claims have impacted an indeterminate number of insureds. 

Insureds are not to know the laws that protect them. Many insureds who experience claim denial in these circumstances simply accept the insurer’s determination as valid and take their claim no further. They cannot even contemplate the idea that there insurer would deny their claim unless they had good reason to. Perhaps some insurers bet on this. 

Insurers providing these products should know, or do know, better. They are expected to make the right decision. 

Denning Insurance Law is interested in hearing from insureds across Australia with respect to decisions like this. To enquire about challenging a decision to deny a claim for non-payment of a premium, email kdenning@dennings.com.au. 

Kate DenningClaims wrongly denied for non-payment of a premium
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Supreme Court awards 55 year old haul truck driver $719k for back injury

Supreme Court awards 55 year old haul truck driver $719k for back injury

Case note: Krobath v Thiess Pty Ltd [2018] QSC 309

A 55 year old dump truck operator has successfully sued his employer, Thiess Pty Ltd (the Defendant) for an injury to his lumbar spine arising out of the drop of a load of rocks into the tray of the rear dump truck he was operating. He was awarded $719,698.15 on 20 December 2018, plus costs.

The defence of this claim was conducted by the Defendant’s insurer, WorkCover Queensland.

Background

The Plaintiff sought damages for an incident where an excavator dropped a load of rocks, including a rock which was approximately 2-3m wide, into the tray of the rear dump truck he was operating. The impact of the jolt, tossed him about ‘violently’ in the cabin.

The Plaintiff first reported his injury to the employer on 29 February 2012. While the injury was not immediately reported to the Defendant, the Plaintiff’s overburden tally sheet for 1 November 2011 contained an unusual note at 5:50pm made by the Plaintiff which was:

  • Big rock drop into tray

The Plaintiff’s explanation for why he did not report the injury were that he:

  • did not feel any symptoms of an injury until the following morning; and
  • felt that his job would be in jeopardy if he complained.

The first time that the Plaintiff consulted a doctor after the incident was on 23 November 2011.

His GP’s notes recorded a ‘jarring’ ‘incident’ to the Plaintiff’s back but also recorded, ‘no injury’. An added problem for the Plaintiff was that his GP’s notes contained the words, ‘5/12 LS back pain’ – which the doctor interpreted to mean, five (5) months of back pain. The GP with whom the Plaintiff attended on 23 November 2011, had not seen him previously.

Issue for determination

The Defendant filed an Amended Defence at the commencement of the trial, admitting that if the Plaintiff was injured in the way alleged, the incident and any injuries sustained by the Plaintiff were caused or contributed to by the negligence and/or breach of contract of the Defendant.

Accordingly, His Honour Justice Crow reasoned that the only issue for determination was whether the Plaintiff injured his back in the way he claimed.

However, further questions arose about the extent to which the injury was contributed to buy the Defendant’s conduct, because of arguments advanced by the Defendant.

WorkCover Queensland’s case

The Defendant denied the allegations by the Plaintiff that between approximately 4:40pm and 6:30pm on 1 November 2011, the Plaintiff was operating a dump truck and that the excavator in question was loading trucks.

The evidence at trial revealed that this was technically correct. The dump truck and the excavator were not operating for the whole of that two (2) hour period.

However, the Defendant’s own records identified that both the excavator and the dump truck would have been operating at 5:50pm, being the time of the ‘big rock’ incident shown in the Plaintiff’s overburden tally sheet.

The Defendant also led evidence that:

  • the Plaintiff had a pre-existing back condition;
  • the incident did not cause the injury; and
  • the Defendant had safe procedures in place with respect to loading of large rocks.

Findings of the Court

The Court was satisfied that the injury was sustained as a result of the incident on 1 November 2011. In a judgment delivered on 20 December 2018 in Rockhampton, found in favour of the Plaintiff. The hearing was 10-12 December 2018.

The Court accepted that while there was no contemporaneous report of an injury by the Plaintiff to his employer, the Plaintiff’s reasons for not complaining were adequately explained.

It is unclear whether the pleadings involved a dispute about section 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld). Section 305B requires a Plaintiff to prove that a risk of this type was forseeable, not insignificant and, that a reasonable person in the position of the Defendant would have taken particular precautions to address that risk.

With respect to the Defendant’s procedures, while the judgment does not specifically deal with section 305B of the WCRA, it:

  • lists several similar incidents at the workplace in the months prior to 23 November 2011, involving other workers; and
  • observes that efficient management for mine equipment, ‘reasonably requires the deployment of skilled operators between different plant’.

The Court determined that the entry in the doctor’s notes referring to a back injury over five (5) months was a mistake. There was no corroborating evidence to support a finding that the Plaintiff had been suffering ongoing back problems before the incident. In fact, to the contrary:

  • he had passed a mine medical examination;
  • he had worked numerous 12.5 hour shifts without complaint or any limitation visible to other workers;
  • his last attendance with that medical practice was in July 2010 (16 months prior); and
  • no other medical practitioner took that history in the course of the claim.

As to whether the incident caused the Plaintiff’s injury, the Court found that the evidence from the Defendant’s expert Dr Atkinson, Neurosurgeon, supported a view that workers suffer neck and back injuries in incidents just like this. This was notwithstanding Dr Atkinson’s evidence that symptoms of injury and an incident like this, generally occur simultaneously.

Considerations

This case and our previous article, ‘Injuries from vibration or a sudden jolt’will be of interest to those in the mining and construction industries.

Judgments in cases like these reveal that some of the key considerations for the Courts are:

  • previous complaints about equipment;
  • the condition of any equipment;
  • reporting of the incident;
  • pre-existing degeneration; and
  • expert evidence on liability.

A chronology which sets out all of the events, evidence and witnesses can assist parties to understand the strengths and weaknesses of their case, at an early stage.

A defence advanced about a pre-existing medical condition should be well supported. In this case, the single entry in the Plaintiff’s GP’s notes (in the absence of other evidence about that pre-existing condition) was insufficient.

Kate DenningSupreme Court awards 55 year old haul truck driver $719k for back injury
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Late reporting of injury and other problems on quantum

Late reporting of injury and other problems on quantum

Case note: Evans v Williams [2018] QDC 210

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

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

Facts

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

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

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

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

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

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

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

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

Expert evidence

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

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

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

Judgment

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

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

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

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

Ms Evans was awarded damages as follows:

General Damages – $15,750

Past Economic Loss – $103

Interest on Past Economic Loss – $4.14

Past Loss of Superannuation – $9.53

Future Economic Loss – $20,000

Future Loss of Superannuation – $2,200

Past Special Damages – $1,773.08

Interest on Past Specials – $24.52

Future Special Damages – $2,500

Total – $42,364.27

Considerations

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

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

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

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

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

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

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

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Kate DenningLate reporting of injury and other problems on quantum
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7 tips for dealing with insurance claims

7 tips for dealing with insurance claims

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

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

Tip 1: Keep a record of conversations

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

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

Tip 2: Get your policy documents

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

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

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

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

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

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

Tip 4: Request documents

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

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

Tip 5: Make a complaint

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

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

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

Tip 6: Seek advice early

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

Tip 7: Request an internal review

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

Next steps

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

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

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

Court restrains Plaintiff from communicating with legally represented Insurer

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

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

Background

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

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

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

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

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

Elements of an Interlocutory Injunction

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

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

Decision

The Court ordered that the Plaintiff be restrained from:

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

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

until the conclusion of these proceedings or further order.

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

Ratio

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

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

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

In arriving at the decision, the Court determined:

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

Considerations

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

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

Offers, Costs and Rehabilitation in CTP Claims

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

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

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

Background

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

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

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

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

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

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

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

Legislation

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

’51 Obligation to provide rehabilitation services

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

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

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

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

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

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

Example-

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

Decision

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

Ratio

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

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

Considerations

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

The decision clarifies that where a CTP insurer:

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

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

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

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

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

The decision will be welcomed by CTP insurers.

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

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

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Kate DenningOffers, Costs and Rehabilitation in CTP Claims
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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.