How To Defend A Common Law Claim

Transcription

1 TOOWOOMBA & ROMA Agriculture industry Overview of the common law process Presenters: Kylie Maras, Pat Hall and Elizabeth Quinlan

2 What is covered by your policy? Your accident insurance policy covers you for the cost of a common law claim. Common law costs (damages) can include payments for past and future loss of income treatment and other expenses pain and suffering If the matter becomes litigated, court costs and counsel costs are covered.

3 A notice of claim has been lodged what happens next? Don t Panic Be available Begin to gather relevant documents.

4 Common law process Throughout the whole process WorkCover acts as the employer s insurer and engages one of its Panel Lawyers to develop the Defence. This will involve the Panel Lawyer liaising with the employer in relation to the factual circumstances of the injury seeking details of the system of work. The sooner these factual aspects are clarified the better. 4

5 Common law process The process commences with the delivery of a Notice of Claim, there need not have been a prior Statutory Claim. If there has been a prior Statutory Claim, the Claim for Damages can only be commenced if a Notice of Assessment has been issued following an assessment of Permanent Impairment of the injury. 5

6 Common law process Prior to the 1 st July 2013 Common Law Damages were available even if the Assessment of Permanent Impairment contained in the Notice of Assessment was 0%. Following recent amendments taking effect from 1 st July 2013 there must be a Notice of Assessment reflecting a permanent impairment of greater than 5% to give rise to an entitlement to Common Law Damages. 6

7 Common law duty of care At common law, the employer owes a duty to take reasonable care to protect an employee against foreseeable risk of injury. The scope of the employer s duty is to establish, maintain and enforce a safe system of work. The duty is non delegable this means that an employer cannot claim that it discharged a duty it owed by delegating responsibility to another party/employee.

8 Was the duty discharged? Key questions: (a) was the risk of injury sustained by the employee reasonably foreseeable? (b) were there reasonable means of removing the risk? (c) if there were reasonable means of removing the risk, did the employer act reasonably in not adopting those means?

9 Safe system / place of work Safe System The employer is required to not only provide a safe system of work, but to establish, maintain and enforce that system of work Safe Place This refers to the employer s premises or any premises used in connection with the employment and pathways which are used as a regular means of access to the employer's premises.

10 Instruction, training and supervision Initial training by an employer may be insufficient and an ongoing system of training may be required. Safe plant and equipment The employer must ensure reasonable care in its maintenance and repair of plant and equipment.

11 The steps in common law claims Notice of Claim Investigations/Disclosure Liability Response Conference.

12 Documentation what if I don t have any? Don t stress Seek advice and speak to your nominated panel lawyer Your panel lawyer will be able to guide you through the information you do have and potentially what you may be able to source.

13 Compulsory conference You will meet with your WorkCover representative all of the information you have provided to date will be used to support your defence against liability. The claimant and their representative will meet with at the conference to discuss the claim, liability and proposed end cost. Your WorkCover representative will speak on your behalf, any concerns you may have need to be raised through them throughout the conference.

14 For future reference The importance of record keeping There are a growing number of rules and regulations that businesses have to adhere to in order to demonstrate that sufficient action was taken regarding all workplace accidents or incidents. One of the easiest ways to create evidence to prove your case is to document all of the steps taken from the time an incident was reported to the conclusion and decision made after the completion of an investigation.

15 Hot spots in the agricultural industry Quad bikes rarely is there adequate or sufficient training in a worker s use of a quad bike, and the nature and extent of injuries can be severe. Repeated use does not amount to sufficient training Lifting and other manual handling activities Falling from heights Work with stock including horses. 15