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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’.

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

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

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