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

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

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

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

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

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

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

Section 54 Insurance Contracts Act

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

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

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

The Facts

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

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

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

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

The Allianz Policy

Insuring clause

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

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

  • death, bodily injury or illness…’

Exclusion clause

The Allianz Policy contained an exclusion clause which read:

‘What you are not covered for:

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

Allianz denied indemnity under the Allianz Policy.

The Submissions

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

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

The Findings

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

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

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


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

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

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

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

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

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

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

The Design Brief

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

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

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

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

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

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

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

The Issue

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

The Expert Evidence

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

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

The Judgment

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

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


Here, the School succeeded against the Architects because:

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

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

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

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

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

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

The Facts

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

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

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

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

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

The Issue

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

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

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

The Training

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

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

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

The Judgment

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

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

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


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

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

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

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

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

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

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

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

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

The Facts

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

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

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

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

The duties the Appellant claimed contributed to her injury included:

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

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

The Issue

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

The Experts

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

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

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

The Judgment

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

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


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

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

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

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

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

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

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

Read Kate’s story here:

My Flexibility Story

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

Photographs of woman at work led to compensable injury

by Kate Denning Google+

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

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

The Facts

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

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

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

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

The Proceedings

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

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

Her appeal challenged these findings of the Commission:

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

The Judgment

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

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


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

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

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

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

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

Parties review claims as Qld changes workers’ compensation laws

by Kate Denning Google+

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

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

The changes

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

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

For respondents

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

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

Contractual indemnities

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

How to respond

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

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

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

Tip truck tray injury not caused by host employer negligence

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

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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.


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.


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.


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

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Kate DenningTip truck tray injury not caused by host employer negligence
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Child fell from train after being caught between closing doors

Child fell from train after being caught between closing doors

Direct Evidence vs Indirect Evidence – Direct Evidence Definition – Child Train Accident – Inferential Findings

Fuller-Lyons v New South Wales [2015] HCA 31

The High Court of Australia (HCA) has upheld the appeal of a child by his tutor, for injuries sustained in a fall from an intercity electric V-set train.


Master Corey Fuller-Lyons (Child) brought proceedings for damages in negligence, against the State of New South Wales (State), as the legal entity responsible for the rail network.

The Child was eight (8) at the time of the incident. He was travelling with his brothers aged eleven (11) and fifteen (15). All three were in the lead car of an intercity electric V-set train (train) bound for Newcastle. About 15 minutes prior to the incident, the Child separated from his brothers.

A guard stationed in the rear car gave evidence that he walked along the train at Morisset Station prior to its departure and checked the doors before the train commenced its journey. The platform at Morisset Station is curved. A customer service attendant (CSA) was also on the platform at the time. The guard relied upon the CSA to observe those cars that he could not see. It was the role of the CSA to signal to the guard when the train was ready to depart. The CSA on duty at the time of the incident was deceased at the time of trial.

The guard conceded it was not possible for someone standing at the rear of the train to observe all four (4) cars. The guard said that because the doors were recessed, it was not possible to see if someone was holding something inside that recess. The trial judge concluded that it would not be possible for a guard at the rear car to see a small opening in the doors of the lead carriage.

The train left Morisset Station and two minutes later, the Child fell from the train. Following the incident a rail officer inspected the doors and observed signs of disturbance with both sets of doors at the front of the lead car. On the eastern side, the doors stalled momentarily when closing, creating a gap of about 350mm, and then continued to close and lock. On the western side, the doors closed with a gap of 100mm.

There was no direct evidence about the circumstances of the Child’s fall. The parties lead expert evidence from engineers. The engineer called for the Child said that it was unlikely that the Child forced the doors against the pressure of the door motors. The State’s engineer gave evidence that a 100m gap in the western side doors, suggested the doors had been held open at Morisset Station and later forced.


The trial judge found for the Child on the basis of inferential findings of fact. At first instance, it was accepted that the cause of the incident was the Child becoming trapped in the closing doors. The Court determined that the rail staff failed to observe the Child’s body protruding from the train, before it had left the station.

However, in the New South Wales Court of Appeal (NSWCA), the Court accepted an alternative hypothesis by the State – that the doors were obstructed by the Child’s shoulder, arm and leg, which would not have been visible. This hypothesis was to the effect that the Child had forced the doors open with the help of his brothers. The NSWCA allowed the State’s appeal.


The HCA concluded that a finding that the Child fell from the western side of the car was inevitable. Suggestions that the Child was up to mischief with his brothers were dismissed. It had not been put to the brothers that they had lied to the guard when questioned after the incident or that they were motivated to cover up any wrongdoing on their part.

In a judgment delivered on 2 September 2015 by French CJ, Bell, Gageler, Keane and Nettle JJ, the HCA determined the appeal was one for acceptance, finding as follows:

  1. Expert evidence from an engineer supported a view that a large part of the Child’s body became caught in the doors at Morisset Station.
  2. Part of the Child’s trunk and limbs would have been protruding from the train.
  3. It was accepted by the trial judge and the NSWCA that the child had his back to the doors prior to his fall.
  4. The CSA failed to observe the Child protruding from the train, prior to it leaving Morisset Station.

Damages awarded to the Child were in excess of $1.5M.


This case highlights the need for parties to take particular care when building a case that is reliant upon inferential findings of fact.  Absent direct evidence about an incident, expert evidence will almost always be required.

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

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Kate DenningChild fell from train after being caught between closing doors
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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.


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.


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).


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.


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.

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Kate DenningBack injury answering work mobile arose ‘in the course of employment’
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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.