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Insurers can be joined as parties to PIPA claims

Case note: Shapcott v W.R. Berkley Insurance (Europe) Limited & Anor [2015] QDC 102

Personal Injuries Proceedings Act Qld – PIPA – Section 16 PIPA – Insurance Contracts Act – PIPA Regulations – Contribution Notice PIPA 

Background

Mr Gary Michael (Michael) brought a claim for personal injuries against Raymond Shapcott (Shapcott) arising out of a massage and Atlas Profilax treatment.  That claim is regulated by the Personal Injuries Proceedings Act 2002 (Qld) (PIPA).

Shapcott issued a contribution notice under the PIPA to Paul Camac (Camac).  Camac held a policy of insurance with professional indemnity insurer, W.R. Berkley Insurance (Europe Limited (Berkley).  Shapcott had no relevant policy of insurance under which he was the ‘named’ insured.

Berkley denied indemnity to Shapcott under the policy.  Shapcott proposed to issue a contribution notice under the PIPA to Berkley.  Michael consented to issue of the notice but Berkley refused. Shapcott made application to the Court for leave to issue a contribution notice to Berkley.

Issue

The central issue for determination was whether section 16(1) of PIPA was engaged, so as to make the Berkley a ‘contributor’.  Section 16(1) states:

‘A respondent who receives a complying part 1 notice of claim may, within the time prescribed under a regulation, add someone else as a contributor for the purposes of this part by giving the person a written notice (contribution notice)— (a) claiming an indemnity from, or contribution towards, the respondent’s liability’. 

Decision

No authorities were before the Court that had considered the meaning of the word ‘indemnity’ in the context of the PIPA.

As such, the Court considered other parts of the legislation noting that:

  • under section 27(1)(b)(ii) reference is made to an ‘insurer’ as a respondent.
  • under section 11(3) reference is made to the fact that an insurer under a ‘relevant insurance policy’ can ‘indemnify’.

Having regard to the way these terms were used in the legislation, the Court was satisfied that reference to ‘indemnity’ in section 16(1) could include reference to indemnity under a policy of insurance.

Shapcott highlighted that the Uniform Civil Procedure Rules 1999 (Qld) and the Civil Proceedings Act 2011 (Qld) required all matters arising from the same facts to be determined together – so there was no utility in refusing the application.  He also argued it would be of benefit to allow the parties to:

  • make proper investigations.
  • inform themselves of strengths and weaknesses of their cases.
  • participate in a compulsory conference and exchange mandatory final offers.

In a judgment delivered 22 May 2015, Dorney QC DCJ allowed Shapcott’s application.

Considerations

Given this decision, it will be interesting to see how parties manage PIPA claims involving indemnity disputes in the future.  Presumably the approach taken will depend upon the circumstances of each matter and the parties involved.

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Kate DenningInsurers can be joined as parties to PIPA claims
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Projectile case not regulated by motor accident legislation

Case note: Hornby v Opbroek & Anor [2015] QDC 101

MAIA – Motor Accident Insurance Act – CTP Lawyers Brisbane – Road Accident Brisbane – CTP Insurance Qld what does it cover? 

Background

Sarah Hornby (Plaintiff) brought an application for a declaration that her claim for personal injuries was regulated by the Motor Accident Insurance Act 1994 (Qld) (MAIA).  The Plaintiff suffered injuries to her face and upper body when Reece Opbroek (First Defendant), threw a beer bottle at the vehicle in which she was a passenger (the Holden).  The glass struck the rear door of the Holden and smashed, then struck the Plaintiff.  When the First Defendant threw the bottle, he was driving a Mazda, with one hand on the steering wheel.

Issue

The issues for determination were whether the injuries, for the purposes of section 5 of the MAIA:

  1. resulted from the driving of the motor vehicle; and
  2. were ’caused by, through or in connection with a motor vehicle’.

Pleadings

In the Statement of Claim the Plaintiff alleged the First Defendant was negligent in the following respects:

  1. failing to exercise proper control over the Mazda to avoid injury to the Plaintiff;
  2. failing to avoid an accident;
  3. failed to drive the Mazda for lawful purposes;
  4. driving the Mazda so that it could be used to position himself to throw a bottle at the Holden; and
  5. positioning the Mazda so he could throw the beer bottle at the Holden in contravention of s 26(1)(a) of the Summary Offences Act 2005 (Qld).

Submissions

The Second Defendant, AAI Limited, made submissions as follows:

  • there was nothing relating to the driving of the vehicle, that would trigger sub-sections 5(1)(a) and (b) of the MAIA.  There needed to be “some wrongful act with respect to the driving, not simply the release of the bottle”.
  • the allegations of negligence pleaded by the Plaintiff did not accord with the Statement of Agreed Facts.
  • there was no factual basis upon which the Court could make any finding, either directly or inferentially, that would identify some relevant fault on the driver.

The Plaintiff made submissions as follows:

  • the injury was ’caused partly by a wrongful act in respect of the control of’ the Mazda.
  • the driving was fundamental to the injury because the First Defendant maintained control of the vehicle in such a way as to allow him to throw the bottle by holding the steering wheel with one hand and throwing with the other hand.
  • the ‘manner’ of driving was a ‘wrongful act’ in that the ‘controlling’  of the vehicle was to ‘effect a tortious act’ which ‘led’ to injury.

There was no real contest that the bottle was thrown ‘by, through or in connection with’ the Mazda.

Findings

Dorney QC DCJ found that:

  1. the injuries were a ‘result’ of the driving of the motor vehicle.
  2. there was no link between the motor vehicle and any wrongful act on the part of the Second Defendant (which is simply pleaded as ‘negligence’) because no negligent act was set out in the agreed facts.

The Court dismissed the Plaintiff’s application.

Considerations

The case serves as a reminder for parties to consider whether the legislation that a claim is brought under, does in fact apply to that claim.

In this case, the agreed facts failed to establish a wrongful act and negligence relating to the driving of the vehicle, so the Plaintiff’s claim was excluded by the MAIA.

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Kate DenningProjectile case not regulated by motor accident legislation
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Insurer not liable for dishonest conduct in deregistered company

Case note: Smart v AAI Ltd; JRK Realty Pty Ltd v AAI Ltd [2015] NSWSC 392

Claim against insurer – Claim against deregistered company – Professional indemnity case

Background

Over the course of five months Mr Nathan Smart and JRK Realty Pty Ltd (the Plaintiffs) transferred $267,000 in a number of transactions to Q1 Financial Services Pty Ltd (Q1).  Q1 was a finance broker.  The Plaintiffs were persuaded to transfer the money by Q1’s general manager, Mr Damian Lynch (Lynch).  Lynch told them that the money would be used to make loans to clients and represented to the Plaintiffs that the loans would return interest at a rate of 3% per month.  However, Lynch misappropriated the funds.

Q1 was wound up and deregistered. Q1 held an insurance policy underwritten by AAI Ltd, formerly known as Vero Insurance Ltd (Vero), at the time of the transactions.  The Plaintiffs brought proceedings directly against Vero under section 601AG of the Corporations Act 2001 (Cth) (the Act).

Issue

The issue for determination was whether, on the facts of the case, Vero was required to meet the Plaintiffs’ claims by operation of section 601AG of the Act.

Findings

Justice Beech-Jones made the following findings in a judgment delivered on 22 May 2015, dismissing the Plaintiffs’ claims:

  1. the Plaintiffs did not make a ‘claim’ against Q1 during the period of insurance and so the insuring clause of the policy was not engaged.
  2. the liability of Q1 was excluded from cover because it arose directly or indirectly from a liability that Q1 assumed ‘outside the normal course of the Professional Services’ as defined in the policy.  In making this finding, the Court accepted the evidence of banker, Mr Dennis Roams for Vero who said, ‘… once Q1 approached Mr Smart and JRK for funds and received funds from Mr Smart and JRK, in my opinion Q1 ceased to be acting as a mortgage broker and/or finance broker. This was not a usual method of disbursing loan funds. In my experience lenders generally provide loan funds directly to borrowers and not to mortgage or finance brokers.’
  3. Q1’s liability was not covered because of an exclusion clause in the policy concerning dishonest and fraudulent acts of the insured. Although, there was a write back to this clause for the dishonest or fraudulent acts of Q1’s employees, it was not engaged because Lynch was an employee of Q1

The Plaintiffs were ordered to pay Vero’s costs.

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Kate DenningInsurer not liable for dishonest conduct in deregistered company
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Worker awarded >$600k for sexual assault by manager

Case note: Moon v Whitehead [2015] ACTCA 17

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

Facts

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

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

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

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

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

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

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

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

Issue

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

Findings

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

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

Considerations

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

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Kate DenningWorker awarded >$600k for sexual assault by manager
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Insurer required to fund rehabilitation despite DNA evidence

Case note: Lee v RACQ Insurance Limited [2015] QSC 120

CTP Lawyers Brisbane – CTP Law Changes – Care for accident rehabilitation – Motor vehicle accident rehabilitation – MAIA – Motor Accident Insurance Act – Reasonable suspicion of fraud

Overview

Mr Lien Yang-Lee (Applicant) made application to the Supreme Court of Queensland for an injunction to prevent compulsory third party (CTP) insurer, RACQ Insurance Limited (Respondent), from ceasing to provide rehabilitation, under the Motor Accident Insurance Act 1994 (Qld) (MAIA).

The Applicant was badly injured in a head-on motor vehicle accident.  The Applicant brought a claim against his father, the alleged driver of the vehicle in which he was travelling.  The Respondent was the CTP insurer of that vehicle.

Because of the Applicant’s youth and severe disabilities, the Respondent agreed to fund rehabilitation in accordance with section 39(1)(a)(iv) of the MAIA.  The Respondent funded around $200,000 in rehabilitation.

The Respondent’s claim manager had concerns about the circumstances of the accident.  The police report noted an issue as to who was driving.  As police investigations advanced, it was revealed that blood all over the driver’s side airbag belonged to the Applicant – not his father.  A late-comer to the scene saw the Applicant’s father attending to the Applicant.  That bystander noticed that the Applicant had a lot of blood on his face.

The police concluded that the Applicant was driving the vehicle.

Issue

The issue to be determined was whether the Applicant should be granted an injunction to prevent the Respondent from refusing to fund rehabilitation.  The evidence before the Court was hearsay.

Findings

In a judgment delivered on 7 May 2015, Dalton J found as follows:

  1. The Applicant demonstrated a case at first instance.  The Applicant’s family had sworn affidavits that he was not driving the car.
  2. Further rehabilitation may assist the Applicant.  That weighed most heavily against the money that would be lost to the Respondent, if the Respondent ultimately established fraud.
  3. The Application was successful and the Respondent was enjoined from reducing any rehabilitation under the MAIA.

Considerations

Despite ‘quite strong circumstantial evidence of fraud’ and the fact that funding of rehabilitation under the MAIA is voluntary, the Respondent couldn’t reduce its funding of rehabilitation to the Applicant.  That rehabilitation was estimated at approximately $40,000 per month.  The Applicant had no assets and offered no security to the Respondent.

Insurers should have regard to this judgment before agreeing to fund rehabilitation ‘on a without prejudice basis’ under the MAIA.

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Kate DenningInsurer required to fund rehabilitation despite DNA evidence
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On appeal: QSC marine engine repairs decision

Case note: Ireland v B & M Outboard Repairs [2015] QSC 84

Mechanic Negligence Lawyer – Mechanic Negligence Cases – Professional Negligence Cases – Proof of Negligence – Civil Liability Act Qld

Facts

The Plaintiff, Colin Ireland, brought a claim for neck and psychiatric injuries from an explosion on 10 April 2006.

B & M Outboard Repairs (Defendant) performed the maintenance, repair and modification of outboard marine engines. In September 2004, the Defendant replaced the fuel lines of the Plaintiff’s Haines Hunter (Vessel) and installed an electric fuel pump in the battery compartment.  After the Defendants performed the work the Plaintiff used the Vessel a few times without incident.

In March 2006, the Plaintiff received an enquiry from a prospective purchaser and set about putting the Vessel in a seaworthy condition. The Plaintiff and his son performed some work on the Vessel.

Some repair work was required to the leg of the outboard motor. Mr Brian Keech, a long term friend of the Plaintiff and a qualified mechanic, assisted with the fitting and repairing of the leg to the outboard motor. Mr Keech inspected the battery compartments and told the Plaintiff it was dangerous to have the fuel lines, electric fuel pump and battery compartment in close proximity to one another, because of the risk of a spark.

The Plaintiff took the Vessel to Port Hinchinbrook, to launch it for a seaworthy trial. Once the Vessel was in the water, the Plaintiff reached into the Vessel, turned the ignition key and described ‘a ‘whoosh’ and some flames which forced him to recoil backwards whereupon he fell into shallow water on the back of his neck’.

The Plaintiff suffered a psychiatric injury and a cervical spine injury.  However, the documentary evidence suggested there was no explicit reporting of cervical spine symptoms until 17 months after the incident.

The Plaintiff was head of the Life Church, Townsville. The Church agreed to continue to pay the Plaintiff 100% of his salary, on his agreement to re-pay 50% of it, in the event he was awarded compensation. With this arrangement, the Plaintiff was effectively overpaid an amount of $300,000 in wages for his services to the Church, as at the date of trial.

Issues

Liability and quantum were in issue. The Defendant challenged the Plaintiff on the cause of the explosion, his reporting of the incident, as well as the nature and extent of his injuries. The Defendant disputed that it had breached the contract with the Plaintiff to perform the work or that they breached the duty of care owed.  The case also considered several defences available under the Civil Liability Act 2003 (Qld).

Findings

In a judgment delivered 8 April 2015, the Court found as follows:

  1. The Defendants recommended and installed a new system for the pumping of and delivery of fuel to the outboard engine and in a relatively confined space installed the electric pump close to potential ignition sources. A consequential fire and explosion was foreseeable and the risk of personal injury from such an event was foreseeable. The Defendants should be held responsible for the harm suffered by the Plaintiff.
  2. The Plaintiff did not voluntarily assume an obvious risk, was not engaged in a dangerous recreational activity and was not contributorily negligent, despite the warning from Mr Keech.
  3. The Plaintiff suffered a serious and disabling psychiatric illness. Damages were assessed in the sum of $703,721. This amount included $351,000 for past economic loss, calculated on the basis that the Plaintiff had suffered a 45%-55% loss of earning capacity.

Appeal

An appeal was filed in the Court on 5 May 2015 by the Defendant. The appeal was discontinued by agreement in July 2015.

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Kate DenningOn appeal: QSC marine engine repairs decision
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Managing indemnity disputes after Highway Hauliers

Managing indemnity disputes after Highway Hauliers

Matthew Maxwell v Highway Hauliers – Exclusion Clause Examples – Exclusion Clauses Australia – Exclusion Clauses Negligence – Insurance Contracts Act – Exclusion Clauses Common Law – Exclusion Clauses Common Law – Exclusion Clauses Australian Contract Law 

Case note: Inglis v Sweeney [2015] WADC 34

This was a judgment of the District Court of Western Australia on a preliminary question of law in a personal injury case.

Issue

The issue to be determined was whether an Allianz Sure Cover Plus home insurance policy (Allianz Policy) required Allianz to indemnify its insureds for their liability to the Defendants.

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 towing 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 Third Parties).  The Third Parties brought a claim against Allianz, seeking indemnity under the Allianz Policy.  Allianz refused indemnity on the basis that the claim by the Third Parties fell within the exclusion under the Allianz Policy because Georgia was a person who normally lived with the insureds.

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: …

b. injury to any person who normally lives with you, or damage to their property;’

Findings

The Court found:

  1. The Defendants’ claim against the Third Parties was a claim ‘in respect of’ bodily injury. Because of this, the Defendants’ claim against the Third Parties fell within the scope of the Allianz Policy.
  2. Georgia was a person who normally lived with the insureds, for the purposes of the exclusion clause.
  3. The relevant act for the purposes of section 54 of the Insurance Contracts Act 1984 (Cth) (ICA) was that at the time the accident occurred, Georgia was living with her parents.  This act could not be regarded as being capable of causing or contributing to a loss.
  4. The exclusion clause did not operate to exclude the Defendants’ claim.  The Defendants’ claim was not a claim for the Third Parties legal liability ‘for… injury to any person who normally lives with you.  Rather, it was for a legal liability to contribute towards the Defendants’ liability to Georgia.
  5. Section 54(1) of the ICA applies in respect of the claim.

Managing indemnity disputes

Parties involved in indemnity disputes like this, may consider making application to the Court for determination of whether section 54(1) of the ICA applies to a claim.

If an indemnity dispute can be decided as a preliminary issue, then one party’s trial costs may be avoided altogether, leaving the remaining parties to the claim to focus on settlement negotiations or, the main issues in dispute.

However, the decision to make application to the Court will depend upon a number of factors, including whether a set of facts can be agreed between the parties.

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Kate DenningManaging indemnity disputes after Highway Hauliers
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QCA extends limitation period in medical negligence case

Wolverson v Todman; Wolverson v Lisle & Hooper & Ors [2015] QCA 74

Background

Ms Julia Wolverson (Wolverson) was treated by a doctor for Multiple Sclerosis (MS). He had four MRI scans which demonstrated a Chiari Type 1 malformation. Wolverson alleges that her doctor failed to diagnose the condition and/or that he misdiagnosed her as having MS. Each of the radiologists reporting on the MRIs failed to identify the malformation.

In 2009, Wolverson sought the opinion of a different doctor. The malformation was ultimately confirmed through further MRIs. The doctor arranged for surgical treatment of the malformation, however, he was unconvinced that it would reverse any of her symptoms. Wolverson reported that a lot of her symptoms had resolved five months after the surgery.

Wolverson failed to commence proceedings within her limitation periods against the doctor and radiologists. She brought applications to extend the limitation periods. The primary judge dismissed the applications and Wolverson appealed the decision to the Queensland Court of Appeal (QCA).

Decision

The QCA allowed the application in respect of the extension sought for the proceedings against her doctor, but not for the proceedings against the radiologists.

Limitation of Actions Act 1974 (Qld)

Under the Limitation of Actions Act 1974 (Qld) (the Act) a Court may extend the limitation period in a Queensland personal injury case where it is satisfied:

  1. ‘a material fact of a decisive character’ relating to the claim was not within the means of knowledge of the person until a date after one year before the limitation period expires; and
  2. there is evidence to establish the right of action.

Establishing a right of action

One issue highlighted in the judgment, was the question of what kind of evidence may be taken into account in deciding whether an applicant has ‘evidence to establish a right of action‘ under section 31 of the Act, in a medical negligence case.

A key consideration in Wolverson, was whether the link between Wolverson’s surgery and the relief of her symptoms, was greater than a ‘mere possibility’.

Gotterson JA found that the primary judge should have taken Wolverson’s own reporting into account. She reported that a number of her symptoms had resolved (including left leg weakness, headache, nausea and vomiting) after her decompression surgery. Gotterson JA found that, if uncontradicted at trial, Wolverson’s evidence would be relevant to establishing a causal link.

Instead, the primary judge had preferred the reports of a number of medical experts, who were cautious in expressing their opinions about whether an earlier diagnosis of the malformation could have been of any benefit.

Of note was the following passage extracted in the judgment, from Mahoney JA in Fernandez v Tubemakers of Australia Ltd [1975] 2 NSWLR 190:

‘Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside the area in which common experience can be the touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable.’

Gotterson JA concluded that the trial judge erred in deciding that Wolverson could not establish a right of action at the level required in Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431.

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Kate DenningQCA extends limitation period in medical negligence case
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Injuries from vibration or a sudden jolt

Injuries from vibration or a sudden jolt

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

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

Previous complaints

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

Condition of equipment

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

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

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

Reporting of the incident

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

Pre-existing degeneration

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

Expert evidence

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

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

Summary

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

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Kate DenningInjuries from vibration or a sudden jolt
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Time for seeking review of workers’ compensation decision restricted

Case note: Blackwood v Pearce [2015] ICQ 012

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

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

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

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

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

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

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

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

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Kate DenningTime for seeking review of workers’ compensation decision restricted
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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.