Author Archives: Queensland Law Blog

Service by Facebook

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The Federal Magistrates Court in Brisbane has set a precedent by allowing an order to be served on a respondent via Facebook.

This followed an oral application in a family law matter which sought an order allowing service to be affected on the respondent via social media, namely Facebook.

The court provided specific direction in what was to be communicated to the respondent, including details of the order, the location of the court, the next court date and the contact details for the applicant’s solicitors.

The court’s acceptance of social media as a means to serve hard-to-locate respondents is seen as a move to help to reduce costs and expedite matters that might otherwise lie in abeyance pending the location of the respondent.

It is expected to be particularly useful in situations where the applicant receives legal aid and multiple attempts have been made to locate a respondent requiring a funding extension each time.

Article care of Proctor and Michael Hefford Solicitors, Kallangur

Website Infringement

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by Steven Morris, Walsh Halligan Douglas

Many clients have had competitors or at times unrelated parties place something on their website which is in fact owned by you. More often than not it is a photograph, an article in whole or part or indeed your or your company’s name. The first step to remedy this situation is of course to request them to remove the offending material or photographs. Often such requests are ignored. What then?

The best and most effective remedy is to have the host of the offending website switch it off until the offending photographs, material or other items are removed by the website owner.

Our suggestion is for a three phase plan to be activated to achieve this:

  1. Have your IT people find out who is the host of the offending site. If you are IT savvy then you need to search the owner of the domain name and internet service provider (ISP).
  2. Send the host a Take Down Notice. This is a request which identifies the infringing photograph material or other content and requests that it be removed. It is the duty of the host to take down the website expeditiously (generally 48 hours) after receiving a Take Down Notice or the host can become liable themselves for the infringing copyright.
  3. Send a copy of the Take Down Notice to the offending site itself. Generally by this stage the site owner will realise that you mean business and usually will decide to remove the infringing item rather than risk the site being taken down unexpectedly.

If these steps do not achieve the desired result then there is always the legal approach and we can assist in protecting your rights.

It Wasn’t Your Fault, But You’re At Fault Anyway

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Under the Motor Accidents Compensation Act 1999 (NSW) (“the NSW Act”), there is provision for the payment of damages to a child killed or injured in a motor vehicle accident involving an insured vehicle notwithstanding the driver of the vehicle was not at fault under the “special entitlement provision” in schedule 7J of the NSW Act.  The recent case of Suncorp Metway Insurance Limited v Wickham Freight Lines Pty Ltd and Ors [2012] QSC 237 considered the effect of the special entitlement provision.

In the accident, a 10 year old child was struck on a road in New South Wales by a prime mover and trailer combination which was registered in Queensland.  The child suffered significant injuries including the traumatic amputation of his right leg.  The child instituted proceedings in New South Wales against the driver and the owner of the vehicle on the grounds of an alleged breach of duty of care.  Additionally, the child claimed an entitlement to the remedies available in accordance with s.7J of the NSW Act.

Section 7J states that:

“If the death of or injury to a child results from a motor accident not caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, the death or injury is, for the purposes of the special entitlement to recover damages conferred by this division, deemed to have been caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if the motor vehicle was involved in the accident and has motor accident insurance cover for the accident.”

The insurer disputed whether the QLD statutory CTP Insurer was required to respond to the claim for special entitlements. Section 5 of the Motor Accident Insurance Act (QLD) 1994 (“the QLD Act”) applies to injuries caused by a “wrongful act or omission”.  The insurer argued that the QLD Act only required a policy to respond to “proven fault on the part of an insured under such policy, and does not respond to “deemed fault” of the owner or driver of a motor vehicle in New South Wales.”

Basically, the question of whether the Queensland policy was required to respond to the child’s claim for special entitlement to damages would turn on the meaning of the phrase “wrongful act or omission” under the Queensland Act.

Justice Applegarth determined

“[T]hat the driver’s conduct might not have been “wrongful” in a moral or ethical sense (for instance, by reason of the absence of negligence, recklessness or deliberate trespass) is not to the point.”

Applegarth J further concluded that

“[A] category of legal liability is created by statute in which injury “is deemed to have been caused by the [negligence or any other tort] of the owner or driver”.  Such a legal liability falls within the ordinary meaning of “wrongful act or omission” in the Queensland Act.”

Applegarth J found that it was not the intention of the various State legislators that there would be a “gap in policy coverage for owners and drivers against such a liability”.  On that basis, he concluded that the child was able to make a claim under section 7J of the New South Wales Act and that the statutory insurance policy in Queensland was required to respond.

Pouring Salt into the Wound

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The Queensland Supreme Court decision of Justice Boddice in Mahoney v Salt [2012] QSC43 confirmed that the choice of privilege over documents may lead to preserving their privileged status irrespective of the various provisions of the Personal Injuries Proceedings Act 2002 (“PIPA”).  This has implications for other legislation dealing with pre-litigation procedures such as the Motor Accident Insurance Act 1994.

In Mahoney v Salt, the applicant sought disclosure of draft statements of one of the respondents and the signed statements of both respondents.  This disclosure was requested in accordance with section 30(2) or, in the alternative, section 20 of the PIPA. The respondents objected to disclosing the documents on the basis that they were subject to a valid claim of legal professional privilege.

The solicitors for the respondent had briefed loss adjustors to investigate the relevant claim.  In the brief to the loss adjustors, the respondents’ solicitors requested that any witness statements obtained by the loss adjusters “be forwarded to us separately from your investigation report, with a ‘With Compliments’ slip which simply notes our reference, not with a covering letter”.  This request was made in an attempt to maintain “the benefit of legal professional privilege” over any statements provided by the Assessor.  The solicitors further qualified the assessor’s instructions by stating that the witness statements should not be attached to or referred to within, either of the investigation report or statement of opinion.

Following disclosure of the investigation report, the applicant’s solicitors requested disclosure of any statements obtained.  The respondents’ solicitors declined to do so.

Section 30 of the PIPA stipulates that the party is not obliged to disclose information protected by privilege.  However, privileged communications such as investigative, medical and other reports relevant to the claimant’s rehabilitation must be disclosed regardless of their privileged status.  The exception to this rule is that statements of opinion may be omitted from such reports for disclosure purposes.  Section 20 of the PIPA waives privilege over “medical reports, assessments of cognitive, functional or vocational capacity and all other material, including documents relevant to assessing economic loss” where an offer of settlement has been made.  The offeror is obliged to produce those documents so the party to whom the offer has been made can appropriately consider it.  Furthermore, section 20 stipulates that once compliance has been given on the notice of claim, a response on liability must be given within six months of that date.

The respondents contended that the statements obtained by the assessors were brought into existence for the dominant purpose of providing the respondents’ insurer with legal advice and hence, were privileged.  Boddice J concluded that the section 20 response on liability had already been provided by the time the statements came into existence and there was no evidence that they had been obtained for the purpose of complying with that section. He also referred to Justice Keane’s judgment in Watkins v Queensland [2008] 1 Qd R 564 in concluding that section 20(3) “expressly required the delivery of medical reports.” On that basis, the respondents were not required to disclose the statements in accordance with section 20 of the PIPA.  Boddice J concluded that he was

“satisfied the respondents have properly established the existence of legal professional privilege in the draft statement and the signed statement.  Each constituted a confidential communication brought into existence for the dominant purpose of obtaining legal advice.”

The applicant attempted to argue that the respondents had waived privilege by referring to the contents of those statements in the loss adjustors’ reports, which had been disclosed.  They relied upon Keane JA in Watkins v Queensland where he remarked “the question of whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it is privileged from production”.  Justice Boddice considered all the circumstances of the current matter with particular reference to the contents of the loss adjustors’ reports and was satisfied that privilege had not been waived in this case.  He held that maintaining privilege over the statements would not be unfair or misleading regardless of the reference within the loss adjustor’s reports to one of the respondent’s version of events.

Unsurprisingly, the applicant finally contended that the instructions given by the respondents’ solicitors to the loss adjustors required them to “deliberately engage in a course of action designed to prevent the applicant from having access to the witness statements, a procedure contrary to the objects of the Act”.  His Honour concluded that the instructions given “highlighted the importance of retaining legal professional privilege” and “did not involve a ruse designed to shroud with privilege a document not properly the subject of legal professional privilege”.

The respondents in Mahoney v Salt were able to successfully argue that the dominant purpose for the creation of the draft and signed witness statements to seek or be furnished with legal advice from their solicitors.  For that reason, they were able to maintain privilege over the documents as they were deemed to fall outside of sections 20 and 30(2) of the PIPA with their privileged status maintained by section 30(1).

The implication to be drawn from this case is that the principles applied to the PIPA in this case are just as likely to apply to the Motor Accident Insurance Act 1994 (“the MAIA”), given the remarkable similarity between the relevant provisions. There is a justifiable claim for privilege over statements obtained by loss adjustors, particularly after a Notice of Accident Claim form has been deemed compliant and a liability response made, irrespective of the provisions in sections 41 (Insurer must attempt to resolve claim) and 48 (Non-disclosure of certain material).  The privilege over such statements would in all likelihood be protected by section 48(1) of the MAIA.

If The Dead Have No Rights, The Living Don’t Either

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By Glen Northway, Solicitor

The recent Queensland Supreme Court decision of Murison & Anor v Nominal Defendant[2012] QSC 221 considered whether dependents were able to claim for loss of dependency and services arising out of the death of the owner of an uninsured vehicle.

The subject accident occurred on 6 November 2009 when the owner of an uninsured vehicle was killed in an accident when he was a passenger in the vehicle when it was being driven by another individual.  The Nominal Defendant admitted that the driver was negligent.  The Plaintiff’s were claiming damages for loss of dependency and loss of services arising out of the death of the vehicle’s owner.  The vehicle was uninsured within the meaning of the Motor Accident Insurance Act 1994 (Qld) (“MAIA”).

The Nominal Defendant argued that pursuant to section 17 of the Supreme Court Act1995, the deceased, had he not died, would not have been entitled to recover damages for personal injuries from the Nominal Defendant.  This argument was based upon the Nominal Defendant’s entitlement to recover as a debt any money paid to an injured person in accordance with section 60 of the MAIA from the owner of an uninsured vehicle.

The Plaintiff’s argued that the Nominal Defendant’s argument of “set off” did not apply because the damages in question could not be quantified until such time as the claim had been settled and damages paid.

Justice Wilson concluded that an equitable set off defence would have been available to the Nominal Defendant as there “would have been such a connection between a claim by the deceased for damages and a cross claim by the defendant for recovery of its costs under section 60 that the cross claim would have impeached the claim so as to make it unfair for the claim to be allowed without taking account of the cross claim”.

Justice Wilson found in favour of the Nominal Defendant in that they were entitled to an equitable set off.

Therefore, because the deceased did not have an entitlement to maintain and recover damages from the Nominal Defendant, the Plaintiffs were unable to maintain their claims.

Employee v independent contractor – ATO scrutiny

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We have previously published papers in relation to the position of whether you and/your staff are employees or independent contractors.  Many businesses seek to make their staff independent contractors to avoid numerous regulatory obligations including Pay As You Go Tax, Superannuation, leave entitlements and payroll tax.

The ATO has announced that independent contractors are high on its list for auditing this year to stop sham contracting.  Significant penalties can apply to businesses for failing to pay employee entitlements.

The ATO ‘s latest compliance program lists as high risk employers the following :

  • Cafes;
  • Restaurants;
  • Real Estate Businesses; and
  • Carpenters.

The ATO expects this year to contact some 13,000 employers in response to complaints from staff members about unpaid Superannuation in particular.

There have been many attempts to disguise employment arrangements as being something other than employment.  As Mr Justice Gray in Reporter: Re: Transport Workers Union Australia said:

“The parties cannot create something which has every feature of a rooster, but call it a duck and insist that everyone else recognise it as a duck.” 

If you have any concerns regarding the status of your staff members whether they are indeed truly “independent contractors” or are in fact employees please contact us to have a review of your agreements and operating procedures.  The consequences for getting it wrong are quite considerable!

School’s out, but is the teacher off duty?

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The tragic events that led to the death of a 12 year old student at a Queensland school over two years ago have led to many schools reconsidering what duty of care they owe their students.  So what duty do schools and teachers owe students and how far does that duty reach?  The following criteria must be met for negligence to exist.

The existence of a ‘Special Relationship’

The modern doctrine of the special relationship was born when Lord Atkins observed in Donoghue v Stevenson that you must not injure ‘your neighbour.’ Neighbours were

“persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.”

In much the same way as between hospital and patient or employer and employee, a special relationship exists between a school/teacher and student.  The key question that needs to be asked is at what point do the duties inherent in such a relationship end?

Usually, when an incident occurs off the school grounds, the test for whether a duty exists is whether or not in the particular circumstances, the relationship of school teacher and pupil existed or not.  It is obvious that once an injury occurs on campus, the duty of care is operational.  This does not mean that every incident that occurs on campus is therefore due to the negligence of the school and/or teachers.  So, when does a duty exist?

Duty of Care

Nobody would question that a duty of care is owed by school authorities and teachers to ensure that reasonable care of students is taken whilst they are on school premises and/or under the direct supervision of the school and its teachers.  It would be hard to argue against a duty of care existing during normal school hours and for all intents and purposes, a duty of care is owed whilst the school is open for business.

The duty of care owed to students is not however confined to normal school hours.  The obvious examples would be school endorsed or arranged excursions and camps that occur outside the normal school operating hours.  There are examples where a duty of care has been found to exist where students have been injured before and after school, during sporting activities and travelling to and from school.  Of course, each set of circumstances needs to be examined on its own merits and this leads to the next criteria.  For a duty of care to be breached, it must be established whether the risk of harm was foreseeable.

Foreseeability

The teacher or school authority can only be found negligent if the risk of harm was reasonably foreseeable.  If a risk is identified, and the school or teacher takes precautions that an ordinary reasonable school or teacher would, to minimise the chances of that risk occurring, then the school/teacher will not be liable.

This sounds like a simple concept when applied to incidents that occur on campus during school hours or whilst a student is on a school sanctioned field trip or excursion, but what about outside those parameters?  It is clear that a teacher who is aware that a fight is happening during a lunch or recess break could take action to prevent it going further.  It is reasonably foreseeable that a fight could lead to a student sustaining an injury.  Such a scenario led to a teacher being found liable in State of Victoria v Bryar [1970] ALR 809.  However, would this still be the case if the fight was to take place off campus and outside school hours?  It is highly unlikely.  The doctrine of foreseeability affords the school and teacher a level of protection in circumstances where injury was not foreseeable.  In one example, a teacher who became aware of the use of catapults by students and oversaw the disposal of them was not liable where a student was injured by a catapult retained by one of the students.

If the risk is found to be foreseeable, it must then be proven that a negligent action caused the injury.  More often than not, injured people fail to meet this test because they cannot prove that any greater supervision would have prevented the injury.

Causation

If all of the three above criteria are satisfied, the student must still prove the relevant act or omission caused the injury.  The most common reason claims by students stumble and fall at this hurdle is that they cannot prove that greater supervision or an alternate intervening act would have prevented the injury.

In cases where incidents occur quickly and increased supervision would have made no difference to the outcome, schools will generally not be found liable.  In the instance that acts are ongoing (bullying being the prime example) and the school or teacher had prior opportunity to act but failed to do so, the school and/or teacher are likely to be found liable.

It is worth bearing in mind that the Civil Liability Act 2003 (QLD) provides some protection to schools and teachers through sections 13 to 19.  Basically, there is no liability for personal injuries suffered when an obvious risk of harm materialises.  It is presumed that in the case of an obvious risk, the person who suffered harm was aware of the risk.  These provisions are particularly relevant for off-campus activities, an example being a white-water rafting camp.

Educational Negligence

An emerging field of negligence against schools and teachers arising more frequently within the courts is that of ‘educational negligence’.  In theory, this form of negligence is premised on a duty of care to educate existing between teacher and student and the school is held vicariously liable because the teacher is (usually) operating within the scope of their employment.  Cases within the United Kingdom jurisdiction provide some guidance.  They have generally been conducted on the basis that the principles of causation and foreseeability also apply, both of which have proven difficult to establish.  There are no judicial precedents within the Australian courts to date apart from the very recent Canberra decision of the Federal Magistrates Court in Yee Tak On v Dr Linda Hort (ANU College) [2012] FMCA 391 on 11 May 2012.  The claimant’s case was dismissed however he expressed his intention to seek redress through the ACT Civil and Administrative Tribunal.

However, a former student of a prestigious Victorian private school has recently filed a claim in the Victorian Civil and Administrative Tribunal.  She has claimed damages on the grounds that she failed to gain entry into the University course of her preference because the school provided her with inadequate support (See our previous blog on this subject).  She has further claimed that the school knew that she was intelligent, having undertaken IQ testing prior to commencing at the school.  She further alleges the school was aware that she struggled with mathematics but failed to provide her with the support necessary for her to “excel”.  The hearing will continue in August.  We will keep you posted on developments.

Don’t just rely on the plaintiff having to rebut the presumption

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The recent District Court decision of McLean v Nominal Defendant [2012] QDC 73 handed down by Judge McGill has highlighted the perils of simply relying on section 47 of the Civil Liability Act 2003 (the “Act”) when alleging contributory negligence.

Section 47 places the onus on the Plaintiff to rebut the presumption of contributory negligence when they suffer harm whilst intoxicated.  In the matter of McLean, the Plaintiff had been on an overnight drinking “binge” at a friend’s house.  The specifics of the following morning’s events were in dispute.  It was accepted that the claimant continued to drink alcohol.

At some point in time, he decided to walk from his friend’s place to his sister’s place, which was in close proximity.  It was during this walk, that he was crossing the road at an unmarked pedestrian crossing (at a roundabout) when he was struck by an unidentified vehicle.  He suffered fractures and crush injuries to both his feet.  The Court found these injuries were consistent with his feet having been run over by a motor vehicle.

The Plaintiff was rather vague on the details of the actual accident.  His story differed somewhat from versions of events provided by other witnesses.  It was generally accepted however, that the accident had occurred as described.

The Defendant alleged contributory negligence pursuant to section 47 of the Act.

The driver of the at-fault vehicle owed a duty of care to keep a proper lookout for the presence of the Plaintiff.  The driver was found to have breached that duty.  Given the accident circumstances, McGill J found the Plaintiff’s intoxication did not “contribute to that breach of duty.  The lack of a proper lookout on the part of the driver of the unidentified vehicle obviously had nothing to do with the intoxication or otherwise of the Plaintiff” (see s.47(3)(a) of the Act).  McGill J found that the driver of the unidentified vehicle had sufficient time and opportunity to be aware of the presence of the Plaintiff as he approached the intersection and therefore be able to take evasive action to avoid the Plaintiff.  The fact that the unidentified vehicle had only run over the Claimant’s feet rather than cleaning him up good and proper, supported this.

McGill J observed that the Nominal Defendant had only pleaded contributory negligence pursuant to s.47 of the Act and the Plaintiff was able to rebut the presumption therein.  It was only during counsel’s submissions that an argument for common law contributory negligence was raised. Even if, at that point, an application for leave had been made to amend the Defence to plead common law contributory negligence, McGill J said that he would not have granted it.

Judge McGill conceded that had contributory negligence been pleaded at common law, he would likely have accepted that due to the Plaintiff’s intoxication “his perceptions of the indications of the approach of the motor vehicle, particularly the sound of it, would have been diminished, and his reaction time would have been increased.  In those circumstances, it is I think quite likely that had he not been intoxicated, he would have noticed the approach of the vehicle sooner, which would have given him more time to get out of its way.”  He indicated that he would have apportioned 20% of the responsibility for the accident to the Plaintiff.

Quantum for the claim was assessed at just under $125,000 plus costs.

The importance of insurers complying with statutory obligations

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A recent case serves as a friendly reminder to CTP insurers that they must ensure they have complied with their statutory obligations.

When a Notice of Accident Claim form (NOAC) in relation to a motor vehicle accident is served upon an insurer, it is required to provide a response to the claimant about whether the NOAC is compliant or not.

If the NOAC does not provide enough information for its liking, the insurer can deem the Notice non-compliant.  It will then provide a suitable period of time during which the claimant must provide more information.  If no response is forthcoming within that period, the insurer is then obliged to give the claimant the heads up that the insurer has heard nothing. This is required to occur within 14 days of the period expiring.  Sometimes, even insurers miss deadlines and things slip through the cracks.

In the recent Supreme Court judgment of Sanders v Nominal Defendant, the insurer did just that.  This led to the Court finding that by “forgetting” to give the claimant a friendly little reminder, the Nominal Defendant was assumed to have deemed the Notice compliant.

The claimant had been injured in a motor vehicle accident on 26 May 2010.  He had been struck by an unidentified vehicle and hence, the Nominal Defendant was in the crosshairs for the claim. The claimant’s NOAC was provided to the Nominal Defendant by letter dated 25 June 2010.  The Nominal Defendant responded within the required 14 days by letter dated 1 July 2010, deeming the Notice non-compliant because the medical certificate did not contain a Medicare Provider Number (“the number”) for the doctor who signed it.

The Nominal Defendant rightly provided the claimant with one month to provide the number.

The parties continued to share information until eight months later when the Nominal Defendant realised its oversight.  It was then the Nominal Defendant advised the claimant, by letter dated 28 February 2011, that because the number was not provided, the claim was statute barred.

The Court held that once the deadline of 1 August 2010 had passed (being 1 month from the letter dated 1 July 2010), under Section 39(1)(a)(iii) of the Motor Accident Insurance Act (the “Act”), the Nominal Defendant was required to write once again (“the second notice”) to the claimant, within 14 days, notifying that the Notice was now compliant or that the claimant had failed to take reasonable action to remedy the non-compliance.

The Court found that because the Nominal Defendant had failed to provide the second notice and continued to exchange information with the claimant,  “it was statutorily estopped from denying that the notice has been given” to the Nominal Defendant by the claimant as required by the Act.

Because the Nominal Defendant did not provide the second notice, it was presumed that it was satisfied that the Notice had been provided as required by the Act.  Given the possible statute barring of the claim, the Court found in the claimant’s favour.

This case is a friendly reminder to CTP insurers that they must be able to go into such matters with clean hands, having complied with all of their statutory obligations.

Image: FreeDigitalPhotos.net

“But I wasn’t taught properly” – The emerging field of educational negligence

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The courts are increasingly being exposed to claims of educational negligence.

A former student of a prestigious Victorian private school has recently filed a claim in the Victorian Civil and Administrative Tribunal.  Ms Ashton-Weir has claimed damages on the grounds that she failed to gain entry into the University course of her preference because the school provided her with inadequate educational support. She had specifically wished to study Law at the University of Sydney.  She boarded at the school during 2008 and 2009 but completed her secondary schooling at a TAFE in Sydney.

The claimant’s mother has alleged that the school knew her daughter was intelligent, having undertaken IQ testing prior to commencing at the school, but struggled with mathematics.  The claimant has alleged the school failed to provide her with the support necessary for her to “excel”.  A teacher at the school is alleged to have criticised the claimant, for using words that were “too long” in her English class, which confused and distressed the claimant, particularly when her grades began to fall.

The school has argued that the claimant could have studied law at other Universities.  It also claims to have supported the claimant however she was poorly organised, regularly missed classes and was on ‘internal suspension’ on numerous occasions whilst at the school.

This case is a claim for what has become known as ‘educational negligence’.  The courts are increasingly being exposed to such claims however none have yet been judicially resolved.  In theory, this form of negligence is premised on a duty of care to educate existing between teacher and student, with the school held vicariously liable because the teacher was operating within the scope of his or her employment.  There are currently no judicial precedents within the Australian courts however cases within the United Kingdom provide some guidance.  They have generally been conducted on the basis that the principles of causation and foreseeability also apply, both of which have proven difficult to establish.

Separately, the matter of Abela v State of Victoria is as we speak in the middle of a four week hearing before the Federal Court.  The applicant Abela is claiming damages for economic loss against the school authority.  Mr Abela’s claim against the government school is based on a breach of the anti-discrimination laws, not in negligence.  He alleges that a school allowed him to progress from grade to grade despite being illiterate and his father requesting that he repeat grades to catch up.

The hearing of Abela is due to conclude on 25 May and Ms Ashton-Weir’s will continue in August.  We will keep you posted on developments.

Image: FreeDigitalPhotos.net