Personal Injury Claims
- Catastrophic Injuries
- We acted for a homeowner defending a case brought against them for failing to provide appropriate support for a ladder while a roof contractor was undertaking building work. The roof contractor sustained catastrophic injuries. The matter was successfully resolved at mediation with no contribution by the insured. Instead, we were able to defect liability exposure onto the builder. At all times, we kept the homeowner fully informed of developments in the case and they provided very positive feedback to their insurer on our performance.
- We acted for a local authority in a $7 million claim brought by an injured claimant who dived into a creek from a bridge and hit a submerged rock resulting in him suffering from a traumatic brain injury and quadriplegia. We were able to reduce the claim costs by agreeing on joint expert evidence in relation to the medical issues. This enabled us to successfully defend the claim by focusing our attention on defending the claims on the basis of dangerous recreational activity, obvious risk and local authority defences.
- We acted for an insured principal contractor facing a claim from a self-employed roofer/plumber performing work on a residential construction site. The roofer/plumber fell 2.7 metres from the top of a besser brick wall to the ground and was rendered a quadriplegic. The principal contractor was the only respondent to the claim so we attacked the claim on the basis that the roofer/plumber was the author of his own misfortune for failing to prescribe his own safe system of work. Ultimately, the claimant agreed to bear 75% liability for his own injuries. The payment on behalf of the principal contractor was approximately $1.5 million plus costs, which represented 25% of the overall agreed quantum of damages.
- We acted for a Gold Coast body corporate and its insurer in defence of a catastrophic (brain damage injury) claim. The plaintiff had fallen over on common property wet tiles.We were able to achieve an early resolution of the claim by ensuring a commercial contribution to the settlement because we successfully argued that the majority of exposure rested with the caretakers.
- We acted for an insured roofer who was contracted by a builder to undertake roofing work at a domestic residence.A contractor to the insured fell from the roof and was catastrophically injured. The contractor made claims against the builder, the insured roofer and a scaffolding company. We settled the matter three days into a Supreme Court trial on favourable terms by arguing that the builder was obliged to erect the necessary scaffolding that would have prevented the claimant’s injuries. By using a proactive settlement strategy and the available evidence to target the other defendants, we were able to avoid a significant finding against the insured roofer, along with the additional costs.
- Our lawyers acted in a case where a gudgeon pin detached from a gate post attached to a fence containing cattle on a farming property located next to a highway in Tasmania. As a result, cattle escaped onto the highway. A motorist collided with one of the cattle and was catastrophically injured. The motorist received a very substantial payment from the Motor Accidents Insurance Board (MAIB) pursuant to the Motor Accidents (Liabilities and Compensation) Act 1973. The MAIB brought an action against the owners of the property and the cattle for reimbursement of the monies it paid as compensation to the motorists. The property owners added Circular Head Fencing (CHF), who had installed the fence, as a third party. The MAIB then added CHF as a third defendant. At first instance, the property owners and CHF were found to be negligent. On appeal, the Full Court overturned the trial judge’s decision, which was important because the MAIB’s recover action and the brain damaged plaintiff’s action had a value of $20 million potential value. Our advice was that the property owner’s liability was nil or minimal.
- We acted for a construction materials company that was responsible for loading and securing bricks into a shipping container that was placed on a prime mover. It was alleged that the bricks were not loaded properly, which resulted in the truck rolling over when the driver was negotiating a 90-degree corner. As a result, a van travelling in the opposite direction was crushed resulting in the death of the driver and very serious head injuries to the passenger. A coronial inquest was held. We represented the construction materials company. At the conclusion of the inquest, no criminal charges were laid against anyone at the company. Five claims were made under the Personal Injuries Proceedings Act 2002 (Qld), including three nervous shock claims as a result of the death of the van driver. All these claims, including the passenger’s catastrophic injury claim, were resolved with only a minimal contribution on behalf of the insured. In addition, an early agreement on contribution was made between the respondent parties. This meant that one set of lawyers took over conduct of the defence of the claim, which saved a considerable amount of money in defence costs.
- The claimant was rendered a quadriplegic when he fell after tripping on flagstones when walking through a garden at the insured’s premises. The claimant alleged that the area was not lit and that the flagstones were uneven. He also argued that the insured should be liable for failing to provide a level walkway or adequate lighting in the area. We attacked the claimant’s claim on the basis that the claimant should be held liable for failing to keep a proper lookout as he walked in the area. As a result, we were successful in having the claimant agree to bear 90% responsibility for the incident. The ultimate settlement sum payable on behalf of the insured was $250,000 plus costs, which represented 10% of the agreed quantum of damages.
- We acted for the insurer of a hotel in a case where an infant plaintiff suffered a severe head injury when he fell from the balcony of a hotel after being able to squeeze through the panels of the balustrade. Defending the claim was complicated by the delay of 15 years from the time of the incident to the date the claim was made. More specifically, it made the claim difficult to investigate. There were also concerns that the absence of information about the state of the balcony at the relevant time would make defending the action impossible. We performed a thorough investigation and were able to obtain sufficient evidence in order to negotiate a settlement with the plaintiff with the settlement offer representing approximately 15% of an assessment of the plaintiff’s damages.
- Mining Claims
- We acted for a mining company with respect to numerous claims made by injured workers employed by various subcontractors on site. Previously, we ran a leading South Australian case on contractual indemnities to establish that the mining company was entitled to rely on the contractual indemnity and offset all liability onto the subcontractors. This was based on the interpretation of the particular indemnity clause. The clause was then used in subsequent contracts and successfully relied upon in numerous personal injury claims to offset all liability onto the subcontractors, including recovery of costs incurred.
- We acted for a mining subcontractor in a third-party contractual claim by an overseas-based mining company for full indemnity against a personal injury damages claim. The mining subcontractor employed the plaintiff who sustained an injury at a mine site. His claim for workers’ compensation was rejected based on complex reasons linked to the issue of medical causation. For this reason, the workers’ compensation insurer was not involved. The plaintiff later commenced proceedings against the mine operator. The mine operator attempted to claim indemnity by relying on contractual terms in purchase orders. Due to the passing of time and a lack of a signed agreement between the parties, it was necessary to undertake detailed investigations into the facts of the case. There were also disputes about the pleadings, including applications brought to adjudicate the giving of proper particulars in relation to the contract that was alleged to be partially oral, in writing and by course of conduct. We were required to handle the matter sensitively because there was an ongoing relationship between the parties. In addition, there was a possibility of a potential precedent being set for other claims arising on the same terms in the future. This matter also involved negotiating the third-party claim in a situation where a plaintiff employee did not have a claim directly against the client and was aggressively pursuing a substantial claim against the defendant mine operator. The matter resolved without the third-party issues proceeding to trial and on a basis favourable to our client.
- We acted for mine owner and operator in relation to a $1 million claim brought by an injured claimant who was crushed between concreting equipment while working at the mine. We successfully secured a contractual indemnity from the contractor responsible for concreting equipment for both the mine’s liability to the claimant and the legal costs in dealing with the claim.
- We acted for a client who provided labour-hire services to remote mine sites. A worker was involved in a ‘near miss’ truck accident with the plaintiff’s vehicle while undertaking labour hire duties for an international mining company. The plaintiff was unable to pursue a claim against his employer. Instead, the plaintiff sought damages from the host employer mining company and our client who he alleged was vicariously liable for the acts of the truck-driving worker. The plaintiff had a complicated psychiatric presentation, which he argued ended his career. We managed to resolve the claim on advantageous terms to our client. This meant that they only contributed a small commercial sum to a large settlement.
- Trip & Falls
- We acted for the insurers of Etihad Stadium with respect to a personal injury claim allegedly sustained by a patron when she slipped on a wet surface on the stairs and sustained an injury. By analysing of various medical records, specifically hospital records immediately after the incident), we established that the plaintiff may well have fallen when she stood to celebrate a goal by her home team, Essendon. The plaintiff denied this. We then analysed recordings of the game. These revealed that Essendon scored a winning goal at the exact moment when the plaintiff sustained the injury (based on the ambulance attendance. We revealed this information at mediation and the plaintiff discontinued her claim.
- We acted for a Lloyd’s Syndicate in relation to an umbrella policy where a property manager of a public housing estate, along with the maintenance services contractor, community housing lessee of public property, faced claims relating to a trip and fall accident on common property. While the factual circumstances of the claim were relatively simple, legal liability was complicated by a complex regime of contracts and lease agreements with a matrix of differing obligations and responsibilities for various maintenance issues. In addition, there was a complex regime of risk allocation and indemnities.
- We acted on behalf of a shopping centre in relation to a personal injury claim in which the claimant sustained injuries due to falling on a spillage. The claimant sought significant damages from the shopping centre and the shopping centre’s cleaners. Despite the shopping centre being notified of the spillage 10 minutes prior to the claimant’s incident, we strenuously defended the claim on the basis that the shopping centre had an appropriate system of cleaning in place and any liability rested with the cleaners. The claimant withdrew the claim against the centre.
- We acted for the owner of a large shopping centre in relation to an incident where a tourist from the United Kingdom sustained serious injury at the centre. We were immediately notified of the incident and the severity of the claimant’s injury. Adopting a strategy to try ‘to keep the lawyers out of it’, we advised our client to approach and assist the claimant. This resulted in the shopping centre agreeing to a settlement with the injured plaintiff on very favourable terms. The claimant then assisted our office to defend the recovery claim that was ultimately pursued by their travel insurer.
- Real Estate
- Our lawyers have advised on claims for the insurer of real estate agents for the past five years. These include claims relating to personal injury occurring at open inspections and a quadriplegia claim relating to building management services provided by the real estate agent.
- Our lawyers acted in proceedings involving a strata manager and owners corporation relating to a personal injury claim arising from an alleged failure to repair a dish drain situated outside of a commercial tenancy. The claim involved a number of evidentiary issues relating to repair obligations and contractual issues as between the strata manager and the owners’ corporation.
- We acted for property managers in relation to a personal injury claim by a tenant involving a collapsed gyprock ceiling. The claim involved issues relating to repairs conducted by the owners’ corporation and follow up inspections conducted by the property manager after further complaints of cracking/leaking. We managed to settle the matter in our client’s favour by showing that phone records and weather data disproved the plaintiff’s key allegations.
- We acted for a property manager in a personal injury claim brought by a tenant against owners and the property manager alleging negligence in relation to the collapse of a garage ceiling. We successfully obtained a contractual indemnity from owners under the management agreement, including a full recovery of costs on an indemnity basis.
- Our lawyers acted in a matter that ended up in the High Court. The matter involved an occupier’s liability claim for significant injury arising from a falling rangehood on a tenant. The key issue in the case was whether the occupier had exercised reasonable care in engaging a handyman to install the rangehood in the context of s5B of the Civil Liability Act 2002. The High Court refused the plaintiff leave to appeal from the Court of Appeal decision that refused the plaintiff’s appeal from the judgement for the occupier at first instance.
We have a team of sexual abuse claim specialists who understand the sensitive nature of abuse claims. Our lawyers provide coverage advice and a bespoke claims management approach. We have experience in high profile media and brand-sensitive claims requiring careful management and communication. We act for government agencies, business, religious organisations, not-for-profits and educational organisations defending allegations of abuse including historical abuse, including representing claims handlers at the Royal Commission into Child Sexual Abuse.
Sporting and recreational injury claims
We have extensive experience representing insurers in sporting and recreational injury claims. These claims typically involve novel liability issues, including the applicability of waiver of liability firms. In recent times, we have ensured that plaintiffs have withdrawn claims involving injuries sustained at skating and rollerblading rinks, personal training sessions, during obstacle course races and involving gymnasium equipment, as well as during jet skiing and jet boating.
Fire-related personal injury claims
We acted for a property owner in relation to a fire that broke out on their property allegedly from high voltage power lines coming into contact with nearby vegetation during a period of high winds. The fire caused property and personal injury damage in excess of $2 million.
At the coronial investigation into the fire, we succeeded in preventing adverse findings being made against our client.
In the ongoing litigation, we succeeded in having the plaintiffs join a contractor of our client to the proceedings. The contractor was responsible for upgrading the power lines at the time the fire broke out. This is an example of how we have used the proportionate liability regime in New South Wales to have other parties incur the cost and risk of joining third parties to the proceedings. This strategy has the potential to reduce our clients’ exposure in these kinds of matters.
Accidental fatal shooting
Our lawyers successfully resolved Supreme Court proceedings in a farming business policy claim relating to an accidental fatal shooting of a farmer during pest control.
The matter involved indemnity and liability issues. The compensation-to-relatives action involved complex analysis of the farming business, its commercial entities and the evidence of the likely effect of the business plan (before the farmer’s death) to change from dairy to beef cattle, as well as some continuing grazing operations.
High-profile personal injury claim
We acted for Jupiters Casino in a case where a guitarist in the band Powderfinger brought a claim under the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) following a late-night incident at Jupiters Casino.
The plaintiff sought disclosure of a broad range of documents relating to matters not directly related to the incident where he was injured. We advised Jupiters Casino not to provide these documents. The Court of Appeal determined that only documents related to the incident needed to be disclosed. As a result, Jupiters was able to recover costs in excess of $50,000. This is the leading judgement in relation to disclosure issues in Queensland under the PIPA.
Use of social media and surveillance
We acted for an insured host employer in relation to a claim by a labour hire employee. The claimant alleged that he could no longer work in manual employment and particularised a significant future economic loss claim.
A thorough online search revealed that the claimant had since established a landscaping business with a Facebook page and a surveillance operative was engaged to monitor the business activities.
The claimant’s financial disclosure did not correlate with the surveillance findings and, as a result, we successfully applied for a court order to suppress disclosure of the surveillance and all online material pertaining to the claimant.
At the mediation, we used this knowledge in a strategic way so that the matter was resolved for a significantly reduced sum.
Our management of this claims shows that our team of public and product liability lawyers are skilled at using new technology to reduce claim costs.
Managing large numbers of personal injury claims
- We acted for a joint venture constructing a major tunnel infrastructure project, which involved managing all the client’s personal injury claims. This included handling personal injury claims for labour hire workers, independent contractors and members of the public. Some of these cases have involved significant injures, as well as complex contractual issues.
- We acted for a well-known supermarket chain, both on direct instructions and on instructions from its insurer, in relation to a variety of personal injury claims. This work has involved managing claims in local retail stores and two major distribution centres in South-East Queensland. Some of these cases have involved managing claims made by labour hire employees. In dealing with these matters, we adopted a proactive approach to understanding the client’s business and business philosophy. It also involved management of the relationships with both the insurer and the claims management entity.
Our lawyers acted on instructions from a national insurer in relation to a claim against the insured importers of soy milk products that were contaminated with high levels of iodine. A class action with more than 600 plaintiffs had commenced in the Supreme Court of Victoria. We advised on the issue of liability under state and federal legislation and on the joinder of two international companies (based in Japan). We then used international treaty protocols to join those parties to the proceedings. Finally, we advised on the potential quantum of the claim and split quantum across multiple policy years. We achieved a favourable settlement before trial.