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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’.

Considerations

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

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

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

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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

Employee Fails to Follow Instructions – Negligent Worker – Tip Truck Accident – Tailgate Accident – Workers Compensation Lawyers for Employers – Workers Compensation Lawyers Qld – Truck Injury Lawyer Blog – Truck Injury Compensation – Truck Injury Law Firm – Truck Injury Lawyers – Tailgate Truck Accident – Liability Claims Example

Facts

Mr Grant Thomas (Worker) was employed by Trades & Labour Hire Pty Ltd to work at the Gold Coast City Council (Host Employer) as a driver and operator of a tip truck (truck).  The Worker was an experienced driver and had worked around trucks for most of his working life.

The Worker took a load of broken pieces of concrete curbing in the Host Employer’s truck to the Suntown Tip at Arundel. The truck was fitted with a tipper tray, which could be raised and lowered hydraulically. The Worker decided to discharge the load under the tailgate, with it swinging on its horizontal axis.  The Worker chose this method, believing that the pieces of concrete were small enough to go under the tailgate. A sample of concrete pieces taken from the load after the incident contained pieces around 600mm wide.

He released two clasps securing the bottom of the tailgate tray from inside the truck cabin. As he was discharging the load, the Worker noticed something wrong with the tailgate. He said it looked as though one corner of the tailgate was hitting the ground. He went to inspect the issue.

The Worker pushed on the tailgate and it fell to the ground, falling on him and causing serious injury to his left foot.

Issue

The matters in issue at trial were whether:

  • the Worker had pushed the tailgate immediately prior to it falling to the ground or whether it had ‘popped off’.
  • the Host Employer had an adequate system of maintenance in place for the truck.
  • the Host Employer provided adequate training and instructions to the Worker.

Judgment

The Worker had given prior inconsistent statements about the sequence of events leading up to the tailgate falling off. He told a co-worker after the event that he had pushed on the tailgate. He also said that he pushed on the tailgate in his Notices of Claim.  However at trial, the Worker said that he was just thinking about pushing on the tailgate and didn’t actually push on it.

The Host Employer had given a written instruction to workers to ‘immediately report’ any problems with vehicles.

Expert evidence was led about whether the hinge pin, which was holding the tailgate on, was wearing prior to the incident and whether that wear should have been detected. The Court found that the crack to the hinge pin was probably caused during manufacture and present for up to six (6) months prior to the incident.

Despite this, the Court did not consider that it was reasonable for inspection of the pin to form part of any inspection or maintenance process.

The Court found that the cause of the cause of the hinge pin breaking and the tailgate falling off, was the Worker pushing on the tailgate. This was despite the evidence of the Defendants’ and Plaintiff’s engineers, that the tailgate could have fallen off without any interference by the Worker.

The Court gave judgment for the Defendants.

Considerations

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

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Kate DenningTip truck tray injury not caused by host employer negligence
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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.

Facts

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.

Proceedings

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.

Determination

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.

Considerations

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.

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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.

Facts

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

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

Issue

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

Determination

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

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

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

Considerations

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

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

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Kate DenningBack injury answering work mobile arose ‘in the course of employment’
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Bill to remove threshold to access damages in workers’ compensation claims

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

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

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

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

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

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

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

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

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Kate DenningBill to remove threshold to access damages in workers’ compensation claims
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Responding to a request for a Compulsory Conference

Responding to a request for a Compulsory Conference

by Kate Denning Google+

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

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

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

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

The Don’ts

Ignore the request

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

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

Immediately agree to the request

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

Cause unreasonable delay

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

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

The Do’s

Review the matter

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

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

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

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

Consider mediation

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

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

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

Informal conferences

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

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

Set a tentative date

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

Comments

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

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

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

‘Actively Participating’ in a Compulsory Conference

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

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

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

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

Some of the methods that we see arise are:

1. Passive

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

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

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

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

2. Aggressive

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

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

3. Measured

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

4. Conservative

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

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

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

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

5. Surprise!

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

6. Efficient

‘Can we cut to the chase?’

‘Can we split the difference’?

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

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

Comments

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

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

Making a Mandatory Final Offer in Queensland

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

by Kate Denning Google+

Introduction

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

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

No Mandatory Final Offer

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

Offers inclusive of costs

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

Offers fixing an amount for costs

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

Offers between Contributor and Respondent

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

Joint MFOs

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

Attaching a Release and Cost clauses

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

Clash of the MFOs

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

Expiring limitation period

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

Getting it right

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

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

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

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Kate DenningMaking a Mandatory Final Offer in Queensland
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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.