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Time extension refused for runaway injury Claimant

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A 2015 District Court case has demonstrated how important it is to ensure that your solicitors have your current contact details and are able to contact you to obtain your instructions. The Claimant’s failure to do so in that case resulted in him losing the right to pursue his claim.

car crash
The facts

The Claimant was injured in a motor vehicle accident on 4 August 2012. He subsequently sent to the insurer a Notice of Accident Claim form. The insurer confirmed that the form was compliant and later admitted liability in full for the accident.

In about March 2013, the Claimant lost contact with his solicitors and did not contact them again until 29 July 2015. There was evidence later adduced in the Court of Appeal that he may have been avoiding the authorities as a result of a suspected arson.

The Claimant applied to the District Court for leave (special permission) to extend the time for bringing his claim in a court so that he would have time to comply with the legislative pre-proceeding requirements.

The law

Section 11(1) of the Limitation of Actions Act 1974 provides that:

“an action for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person… shall not be brought after the expiration of 3 years from the date on which the cause of action arose.”

However, the Claimant also had to comply with pre-proceeding steps provided by the Motor Accident Insurance Act 1994 prior to commencing his claim, including cooperating with the insurer, making himself available for independent medical examinations and attempting to resolve the claim by compulsory conference before his claim for damages could be filed in court.

Section 57 of the Motor Accident Insurance Act 1994 provides as follows:

“(1) If notice of a motor vehicle accident claim is given under division 3, or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under division 3, before the end of the period of limitation applying to the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended.

“(2) However, the proceeding may only be brought after the end of the period of limitation if it is brought within—

(a) 6 months after the notice is given or leave to bring the proceeding is granted; or

(b) a longer period allowed by the court.”

The decision

The District Court dismissed the application to extend the time for the following reasons:

  • 1. The Claimant’s failure to comply with his pre-proceeding obligations had been caused by his decision to not make contact with his solicitors
  • 2. The insurer may have been prejudiced by the Claimant’s long absence, because if his condition had improved or worsened it would now not be able to verify when this may have occurred
  • 3. The Court found that the Claimant probably had been advised of the three year time limit for filing his claim, and therefore would have been aware of the potential consequences of his long absence.

 

The result of the District Court’s decision was that the Claimant missed the time limit and his claim was statute barred. This decision was upheld on appeal. As a result, the Claimant lost his right to pursue the claim. Costs were awarded against him in the District Court and the Court of Appeal.

Conclusion

This is an important case concerning a Claimant’s responsibilities and obligations in respect of his or her own claim.

This case provides a salutary lesson in terms of the following:

  1. 1. The need to be contactable by your solicitors throughout your claim
  2. 2. The need to avoid any undue delay of your claim
  3. 3. The importance of observing the three year time limit and being proactive where possible in avoiding the need to apply to Court to extend the time limit .

 

Personal injury claims are serious matters and must be taken seriously. In particular, it is extremely important for a Claimant to comply with their obligations at law, as failing to do so may jeopardise their claim.

Inghams not liable for assault by former worker

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Inghams Enterprises

The facts

Aaron Michael Brain had been dismissed from his employment with Inghams Enterprises Pty Ltd in early January 2013. On the night of 1 February 2013, Brain approached different female Asian workers as they left at the end of their shifts in the carpark of Inghams Enterprises’ Murrarie factory. The first three women he approached between about 11:00pm and 11:45pm found his behaviour to be strange and felt some apprehension, but managed to disengage and leave.

At 11:45pm Brain approached the Plaintiff Kim Yen Tat and gave her the false story about having a pregnant partner who needed help. She declined to accompany him, walked over to her car, and got into the driver’s seat. However, Brain stopped her from closing the car door. He then said “Can I give you a hug?” and tried to put his hand on her neck. She pushed his hand away and felt something stick into her hand. She then pushed him away, got out of the car screaming and ran away. Brain left the scene after workers came to her aid.

Immediately after this incident, Inghams Enterprises send a notice to all its employees warning them of the risks of being in or remaining in the carpark alone.

Brain, who was on parole for other violent offences at the time of the incident, had his parole suspended on 6 February 2013. He later pleaded guilty to assault occasioning bodily harm in respect of the incident and on 23 January 2014 was sentenced to two years imprisonment with a parole eligibility date after 6 months.

The Plaintiff suffered significant post-traumatic stress disorder injury from the incident and sued her employer for negligence.

Relevant law

Section 305B of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) provides that:

“305B General Principles

(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.

(2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things):

(a) the probability that the injury would occur if care were not taken;

(b) the likely seriousness of the injury;

(c) the burden of taking precautions to avoid the risk of injury.”

Section 305C of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) provides that:

“305C Other Principles

In a proceeding relating to liability for a breach of duty—

(a) The burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and

(b) The fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or effect liability for the way in which the thing was done; and

(c) The subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does of itself constitute an admission of liability in connection with the risk.”

Section 305D of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) provides that:

“305D General principles

(1) A decision that a breach of duty caused particular injury comprises the following elements—

(a) the breach of duty was a necessary condition of the occurrence of the injury (“factual causation” );

(b) it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (“scope of liability”).”

District Court decision

The primary judge noted that it did not matter that the precise manner in which the plaintiff received her injuries was not foreseeable, and that he was required to bring a prospective, rather than a hindsight analysis to bear on the question of foreseeability. He also acknowledged that the essence of the Inghams Enterprises’ argument was that the injury was not foreseeable due to the practical absence of any prior incidence of violence by a third party to an employee.

However, primary judge relied on expert evidence from engineers experienced in risk management and security assessments to the effect that the safety of workers from violence and assault should be managed proactively, and held that Inghams Enterprises should have engaged in an assessment of the risks of third party violence to its employees as well as how it should respond to those risks. According to the primary judge, Inghams Enterprises could and should have the installed duress alarms at regular intervals in the carpark and warned its employees in a similar way the way it did after the incident.  Inghams Enterprises’ reliance on factually distinguishable cases was rejected because of evidence at trial that many female workers left the workplace late at night five times a week through a large, open car park in an industrial area.

As a result, the primary judge found that Inghams Enterprises had been negligent and had to pay damages to the plaintiff. Inghams Enterprises appealed against this judgment.

Court of Appeal decision

On appeal, Inghams Enterprises argued that the primary judge had erred in finding that Inghams Enterprises should have taken action to prevent the incident which caused the injury. It argued that the primary judge’s reference to the events after the incident were contrary to s305C(c) of the Workers’ Compensation and Rehabilitation Act because that approach treated the instruction which had been given to the staff as an admission of liability. Inghams Enterprises also contended that the findings erroneously involved the application of hindsight, because they were inherently specific to the unusual facts of the case, which did not involve a single assault, but a protracted course of abnormal conduct prior to an assault. The Court of Appeal held that these arguments did not take into account the abovementioned expert evidence led at trial.

Inghams Enterprises also submitted that the plaintiff had failed to prove that the installation of duress alarms and training of and warnings to staff would have prevented the incident, and therefore causation had not been established. It was argued that the primary judge’s conclusions on causation rested on the propositions that had duress alarms proper training and instructions been provided, at least one of the other workers involved in the earlier encounters with Brain would have been sufficiently concerned about him that they would have called security, the security guard receiving the report would have left the security office and found Brain, Brain would have been required to leave, and Brain in turn would have complied with that direction. Justice Bond held that it was not open on the evidence for the primary judge to reach such conclusions.

Furthermore, as Gotterson JA noted, the trial judge did not make findings that a failure to install duress alarms or upgrade of the CCTV monitoring was the cause of the respondent’s injuries.

Because the judge erred in finding that causation had been established, the appeal was allowed and the decision of the primary judge was set aside, with costs awarded to Inghams Enterprises.

Conclusion

This case is a good reminder that even if an employer has breached their duty of care, it is still necessary for a plaintiff to prove that the breach caused their loss. In this case, there was insufficient evidence to establish that training and warnings would probably have prevented Brain from approaching the Plaintiff in the carpark. Because causation at law was not proven at trial, the result was that the claim against Ingham Enterprises had to fail.

Teacher’s claim against school for slipping on grape dismissed

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The District Court’s decision to dismiss a teacher’s claim for slipping during a fruit break shows that a lack of previous incidents can be decisive on the question of liability.

risk

The facts

Debbie Deans was employed by Riverside Christian College in Maryborough when on 4 March 2015 she slipped over a grape during a ‘fruit break’ during the course of her employment, fracturing her left patella.

She sued her employer, claiming that it was negligent for failing to:

(a) take reasonable care for her safety;

(b) establish, maintain and enforce safe methods and systems for her to carry out her employment;

(c) supervise her so as to ensure she carried out her employment safely;

(d) warn her of the possibility of injury to her in carrying out her employment and instruct her in methods of work to avoid the possibility of such injury;

(e) provide a safe work environment within which her was required to perform her duties;

(f) not require her to perform work where the defendant knew, or ought to have known that the carrying out of the work may cause injury to her;

(g) failed to implement a system of inspection and cleaning following “fruit break” when it knew, or ought to have known, that there was a higher probability of slip hazards being created in the area due to the fact that five and six year old children were carrying fruit through the area;

(h) failing to make arrangements for the five and six year old children to store their “fruit break” snacks in an area that was not a high traffic pedestrian area.”

Relevant law

Section 305B of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) provides that:

305B General Principles

(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.

(2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things):

(a) the probability that the injury would occur if care were not taken;

(b) the likely seriousness of the injury;

(c) the burden of taking precautions to avoid the risk of injury.

Section 305C of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) provides that:

305C Other Principles

In a proceeding relating to liability for a breach of duty—

(a) The burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and

(b) The fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or effect liability for the way in which the thing was done; and

(c) The subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does of itself constitute an admission of liability in connection with the risk.”

District Court decision

Deans’ lawyers argued the general notoriety of young children dropping things and leaving them on the floor meant that this risk was foreseeable as defined in section 305B(1)(a).

Farr SC DCJ rejected this argument, noting there was no evidence of any previous incidents of people slipping on things dropped by children at Riverside Christian College, or at any other school. Nor was there any evidence that Riverside Christian College knew of this particular risk of injury. Therefore, the risk was held not to be foreseeable.

The argument that Riverside Christian College had conceded foreseeability by also pleading a defence of contributory negligence was also rejected because it ignored the statutory definition of “obvious risk” contained in section 305I of the Workers’ Compensation and Rehabilitation Act, and was contrary to the High Court’s decision in Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19.

A further issue which Farr SC DCJ considered was whether the risk was not insignificant within the meaning of s305(1)(b) of the Workers’ Compensation and Rehabilitation Act. Farr SC DCJ noted that the fruit break had been taking place for five years without any previous incident, and the relevant area would have been traversed by thousands if not tens of thousands of people at and around the fruit breaks. For these reasons, Farr SC DCJ held that the risk of injury arising from items being dropped on fruit breaks was insignificant.

As a result of these findings, Riverside Christian College had not breached its duty of care, and therefore the claim for negligence had to fail.

Conclusion

This case demonstrates that where a defendant in Queensland has organised for a particular activity without any prior incident for some years, they will have a reasonable chance of defending the claim for personal injury on that basis alone, as the activity in question may not involve risks which are foreseeable or significant within the meaning of the law.

This decision is good news for schools, who can now have some comfort that activities which involve a small degree of risk of personal injury can still take place without the risk of being successfully sued as long as such activities are conducted as safely as practicable.

Employers & Mine Operator liable for worker’s injuries after work

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It is common for workers in the mining industry to work long hours during long shifts, and to perform many such shifts in a short period of time. Exhaustion is therefore a real safety risk.

In this case, the Plaintiff Harold Kerle had been employed as a dump truck operator at the Norwich Park Mine near Dysart in Central Queensland and was severely injured after work in a one vehicle accident on his way home.

This case shows that the duty of care owed by employers and others is not always confined to the work hours or the place of work.

resource

 

The facts

Harold Kerle had completed four consecutive 12 hours shifts at the Norwich Park Mine. He made the fateful decision to commence his journey home at about 6.30am on the morning of 30 October 2008, moments after he had finished his final shift. He lived in Monto, a five hour 430 kilometre drive away.

Shortly before 10am, Kerle crashed his car into a concrete wall after veering onto the right hand side of the road and colliding at high speed on an Armco rail on a bridge crossing at Alma Creek on the Burnett Highway. Kerle sustained significant injuries, including a brain injury and fractures of his ankle, nose and skull. Kerle had no memory of the accident or the events leading up to it.

Alleging the accident was caused by fatigue, Kerle sued his employer Axial HR Pty Ltd (“Axial”), his host employer, HMP Constructions Pty Ltd (“HMP”) and the operator of the Norwich Park Mine, BM Alliance Coal Operations Pty Ltd (“BMA”). Continue reading “Employers & Mine Operator liable for worker’s injuries after work”

Lorna Jane’s comprehensive court win

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Amy Louise Robinson was employed by activewear company Lorna Jane Pty Ltd between July and December 2012 as manager of Lorna Jane’s DFO store at Skygate near Brisbane Airport.

Ms Robinson claimed to have suffered a psychiatric injury from workplace bullying by Megan McCarthy (Lorna Jane’s learning and development manager) and haemorrhoids when lifting and moving heavy boxes of stock during the course of her employment.

Relevant law

Vicarious liability is a common law principle which imposes liability despite the employer’s not itself being at fault. The claim for psychiatric injury alleged that Lorna Jane was vicariously liable for the actions of McCarthy and also that an email from a former DFO store employee named Ms Maninnen which alleged ill-treatment of Robinson by McCarthy had put the company ‘on notice’ and that it had subsequently failed to investigate.
Continue reading “Lorna Jane’s comprehensive court win”

The question of reasonable forseeability of injury

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Introduction

It is a well established principle in the law of negligence that a defendant should only have to take precautions against reasonably forseeable risks to others. Reasonable forseeability can be contrasted with risks that are “far fetched or fanciful”.

The 2013 Queensland Court of Appeal cases of Heywood v Commercial Electrical Pty Ltd [2013] QCA 270 and Suncorp Staff Pty Ltd v Larkin [2013] QCA 281 are useful reminders of the centrality of the concept of reasonable forseeability of risk in negligence cases against employers.
Continue reading “The question of reasonable forseeability of injury”

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