Association of Self Insured Employers of Queensland: promoting sustainable return to work outcomes
Implications
This case, in which DibbsBarker successfully represented the defendant employer, highlights that inconsistencies in the recollection of past events will not necessarily affect the credibility of a witness.
This is the case if circumstances are such that the witness might not reasonably be expected to have a precise recall of the events. On the other hand, a claimant who provides misleading information to an expert or specialist in circumstances where they know that the information will be relied upon in preparing evidence to be admitted in litigation, risks being discredited.
This is not only in relation to the matters about which they were dishonest, but in relation to their evidence generally.
In discussing the evidence, the court also noted that matters with respect to which the plaintiff gave evidence during examination in chief were not put to the defendant's witnesses on cross examination. This suggests that parties should be mindful of the inferences which may be drawn in relation to issues which are not put to the opponent's witnesses.
Facts
Bradley Hannah (the plaintiff) claimed damages from his employer, Barellan Bobcat Hire Pty Ltd (the defendant), for personal injuries allegedly arising from an assault by Derk Houwen (Derk) and his mother, Karen Houwen (Karen). These injuries occurred during an incident which occurred at the defendant's office on 8 July 2008.
The defendant company had 200 issued shares, half of which were held by Reinder Houwen (the sole company director) and half of which were held by Karen. Karen was the company secretary.
The company had only three employees: Karen, Derk and the plaintiff.
The plaintiff alleged that while he was engaged in a heated discussion with Karen, Derk entered the company's office and instigated a physical altercation.
At one point during the scuffle, Derk purportedly held the plaintiff in a headlock on the ground while Karen repeatedly struck the plaintiff with a golf club (or otherwise) on the back of his head, his back and his right hand.
The events which gave rise to the plaintiff's claim were strongly disputed by the defendant. Derk alleged that after asking the plaintiff to calm down and "talk about this", the plaintiff head-butted Derk which initiated the physical exchange wherein both men fell to the floor with Derk holding the plaintiff in order to protect himself. Derk denied the plaintiff's allegation that Karen had repeatedly struck the plaintiff with a golf club. His testimony was consistent with his mother's account.
The claim for damages was pleaded on two grounds: that the defendant was liable for the acts of Derk and Karen "who, at all material times, represented the directing mind and will of the corporation"; and/or that the physical and mental injuries sustained by the plaintiff were caused by the negligence, breach of contract and/or breach of statutory duty of the defendant.
In light of the disputed facts, both parties sought to challenge the credibility of their opponent's key witnesses at trial. The cross-examination of Karen focused on inconsistencies in a statement she had made annexing a series of telephone calls made by her and others after the incident. The defendant sought to discredit the plaintiff by drawing attention to his dishonesty during two psychiatric examinations when he had provided a false history regarding his use of illicit drugs.
Decision
Martin J rejected the plaintiff's version of events and dismissed his claim against the defendant. Relying upon the testimony of Derk and Karen with respect to the circumstances of the altercation, his Honour concluded that the injuries sustained by the plaintiff were no more than the consequences of his own actions. As a result, the trial judge found it neither necessary nor desirable to consider the legal issues put forward in the pleadings.
In assessing the reliability of the witnesses, Martin J opined that the inability of Karen to identify certain telephone calls on record was not a matter that went to her credit because it would be unlikely that anyone would recollect the precise nature of every conversation immediately following a traumatic event.
On the contrary, the trial judge was highly critical of the plaintiff's deceitful conduct prior to trial. In particular, his Honour noted that the plaintiff knew that the psychiatrist's reports would be used in the litigation and thus any explanation was nothing more than a "flimsy self-justification designed to evade the consequences of his dissembling behaviour".
The trial judge also acknowledged that none of the accusations involving physical violence or verbal abuse by Derk or Karen, which were drawn from the plaintiff in examination in chief, were put to the defendant's witnesses during cross-examination. Furthermore, his Honour found that the plaintiff's allegations were not supported by the photographic and/or medical evidence. Accordingly, Martin J concluded that the plaintiff's accounts had an "air of unreality to them".
In light of Martin J's factual findings, he did not find it necessary to determine: whether the conduct of the company secretary could be attributed to the company, or whether the company was vicariously liable for the actions of the co-worker.
In relation to these issues, the defendant had submitted that a finding in favour of the plaintiff with respect to attribution and/or vicarious liability would have been irreconcilable with the decisions in Deatons P/L v Flew (1949) 79 CLR 370, Presidential Security Services of Australia P/L v Brilley [2008] NSWCA 204 and Howard v State of Queensland (2001) 2 QdR 154. This is because the plaintiff did not establish a connection between the actions of Derk and Karen, and the performance or execution of the defendant's business.
For more information on this case, please contact:
Terry Killan | Partner T +61 7 3100 5108 F +61 7 3100 5001 E terry.killan@dibbsbarker.com Mark Wiemers | Partner T +61 7 3100 5159 F +61 7 3100 5001 E mark.wiemers@dibbsbarker.com
We hope you find our report informative and helpful in learning about our performance and achievements throughout the year.
WorkCover provides workers' compensation insurance for Queensland employers, compensating and helping workers with their work-related injuries. We work hard to be a customer focussed insurer, and aim for insurance excellence. Our strategy is simple: build lasting, valued relationships with our customers and stakeholders. This means understanding and meeting customers' needs and evolving our business processes to suit these needs.
WorkCover is committed to clear and open lines of communication with our customers and stakeholders. This annual report provides a comprehensive record of our financial and non-financial performance for 2010-2011.
Under the Workers' Compensation and Rehabilitation Act 2003, WorkCover is required to produce an annual report. However, we aim to go beyond this requirement and deliver reliable information to meet the needs of our customers: employers and workers, as well as stakeholders including:
We encourage feedback on this annual report via either the feedback link in the footer of each page, email to info@workcoverqld.com.au or by telephone on 1300 362 128.
WorkCover is committed to providing accessible services to Queenslanders from all culturally and linguistically diverse backgrounds. If you have difficulty in understanding the annual report, you can contact us on 1300 362 128 and we will arrange an interpreter to effectively communicate the report to you.
Access the fill report here
Charles Parsons, Calibre Clinical Director and MarkCassidy, 2Crisk at the Expo in Johannesburg.
Queensland software company 2CRisk is leading the way of Australian companies growing overseas with the launch of their Human Risk management solution in South Africa in September.
The company, led by directors Nick Binns and Mark Cassidy, will take 2CRisk to the OSH Expo Africa Trade Exhibition, held in Johannesburg early in September to pitch to clients from across the African continent.
Together with their South African partner, Calibre Clinical Consultants, 2CRisk will be taking part in the expo to develop already existing market opportunities for both companies.
"It's exciting to be an Australian company, and specifically a Brisbane company, competing on a world stage with a product that we genuinely believe can help all sorts of companies with their health and safety programs," said Nick Binns.
"Our plan is to take our product global within five years and with the investment and support we've received from our Partners and AusIndustry, we certainly think this is achievable."
The Brisbane-based company has spent 6 years developing a unique 'cloud based' risk management software solution that can save companies hundreds of thousands of dollars in the cost of workplace related injuries, lost productivity and reduced insurance premiums.
The philosophy of the Company and the software is to maintain the health of the workforce and reduce the risk of injury by providing a tool that genuinely allows an organisation to value their most important asset - their people.
Since its launch in 2010, 2CRisk has been implemented in a number of Australian companies including businesses in mining, construction and health services .
"We'll be looking for a greater understanding of the health risk requirements needed in Africa so that they may be included in future releases of 2CRisk," said Mark Cassidy.
"This will also aid Australian organisations hoping to gain work in Africa, where health exposures are vastly different to those in Australia."
Mark Cassidy is no stranger to the OHS and Risk industry. With over 16 years experience in the rehabilitation and return to work sector, Cassidy can boast a wealth of knowledge in areas of preemployment risk, innovative injury management and human risk management.
"As companies look for ways to save money across the board and retain skilled workers in a tight labour market, we believe that proactively managing the health and wellbeing of the workforce is paramount.
Whether you have 10 employees, or 10,000 employees, we have yet to see any client who hasn't made a huge impact into the health of their employees and contractors whilst reducing their cost base through the use 2CRisk," said Mark.
"We believe we can take these lessons and make this Australian-developed software a force in the marketplace around the world."
If you would like an online walkthrough or for more information about 2CRisk and their growth worldwide, please contact Nick Binns on 0409 471151 or nickb@2cRisk.com.au. 2CRisk can be found at www.2crisk.com.au
Safe Work Week
Title: Mighty Mal wants you to support Safe Work Week 2011
Workplace Health and Safety Queensland (WHSQ) is celebrating Safe Work Week (23 - 29 October 2011) throughout the month of October, providing Queensland workplaces with a great opportunity to reflect on the importance of workplace health and safety. Safe Work Week 2011 is part of a national event that shines the spotlight on the importance of health and safety in the workplace.
Mal Meninga, football legend and State of Origin coach, is proud to continue his role as Safety Ambassador for Safe Work Week 2011. Mal's personal belief in zero harm at work, coupled with his own experience of losing his father as a result of a workplace incident, drives his commitment to support Workplace Health and Safety Queensland.
"Safe Work Week celebrations throughout October are an opportunity for workers to take the time to reflect on the importance of health and safety in their workplace. Coming home safely from work every day is something worth promoting and something I am very proud to be part of... I urge all Queensland workers - get involved and support Safe Work Week! Don't be blue, be on a winning team and achieve zero harm at work!" Mal Meninga, Safety Ambassador 2011.
Safe Work Week proved hugely successful last year and will be even bigger this year. Celebrations kick off on the 4th October at the inaugural Workplace Health and Safety Symposium in Brisbane and will wrap up with the popular King George Square breakfast with Mal on Friday 28 October. Last year the breakfast attracted over 2000 people!.
Key events planned for October include:
With Safe Work Week just around the corner now is the perfect time to start thinking about how you can get involved.
Safe Work Week campaign resources are available online and include a range of posters, a Mal Meninga calendar, interactive posters to promote your own events, educational resources including popular industry hot spots and even stuff for your kids.
How can I get involved?
Visit www.worksafe.qld.gov.au for Safe Work Week updates and registration details for October events.
Please find attached, the September 2011 PIEF Newsletter. In this edition,
We trust you will enjoy reading about the exciting initiatives currently underway in the industry, and invite you to join us at our upcoming events.
PIEF
Education and Industrial Relations The Honourable Cameron Dick 30/06/2011
Nominations are open for the 2011 Queensland Safe Work Awards
Industrial Relations Minister Cameron Dick has called on Queensland businesses and individuals to showcase their commitment to workplace safety by entering the 2011 Queensland Safe Work Awards.
"The Bligh Government is committed to zero harm in workplaces," Mr Dick said.
"We want every worker in Queensland to come home safely at the end of every working day.
"The 2011 Queensland Safe Work Awards are one way we can showcase the excellent initiatives being pioneered by Queensland businesses.
"That is why Safety Ambassador Mal Meninga and I are encouraging businesses and individuals to enter the awards for their chance to win $6000 in prize money and highlight how they are making workplaces safer.
"Run by Workplace Health and Safety Queensland and the Electrical Safety Office, the awards recognise and reward innovative ideas, leadership and commitment to workplace health and safety.
"Educating and promoting workplace health and safety is vital to cutting the Queensland injury and fatality toll.
"In 2008-09 there were almost 96,000 claims for workers compensation across the state, this comes at a tragic personal cost for families and loved ones and a cost of billions of dollars for the state's economy.
"That is why these awards are so important - they recognise some of Queensland's safest businesses and provide a great opportunity for workplaces to showcase their safety initiatives and be proud of their achievements."
There are six categories to enter:
1.Best workplace health and safety management system
2.Best solution to an identified health and safety issue
3.Best workplace health and safety practices in small business
4.Best individual contribution to workplace health and safety
5.Best solution to an identified electrical issue
6.Best leadership contribution to workplace health and safety
The awards are open to all Queensland organisations and individuals and the winners will be announced at a joint awards ceremony with Q-Comp's Return to Work Awards on 26 October 2011 during Safe Work Week.
The Q-Comp Return to Work Awards celebrate the commendable achievements of workers, employers, self-insurers and rehabilitation and return to work coordinators in the industry. Further information is available at www.qcompconference.com.au .
For more information and details on how to enter the Safe Work Awards visit www.worksafe.qld.gov.au or call Workplace Health and Safety Infoline on 1300 369 915.
Media contact: Minister for Education and Industrial Relations 3227 1000
Tuesday, 07 June 2011 12:19pm
Queensland employers will no longer pay the lowest workers' comp premiums in the country, with the average rate set to increase significantly for the second year in a row. WorkCover Queensland chair Ian Brusasco said the increase was necessary to ensure the "stability" of the WorkCover scheme, even though its solvency rate was above 100 per cent, meaning its assets exceeded its liabilities.
From 1 July 2011 the average premium rate would increase by more than nine per cent, from 1.3 per cent of payroll to 1.42 per cent, Brusasco said. It increased by 13 per cent in July last year.
Brusasco said the Queensland scheme provided "some of the best benefits in the country to injured workers". "It also allows workers to access common law damages where they are able to establish that their employer was negligent."
The latest hike meant the scheme could "continue to provide the necessary support and assistance for injured workers and their families", and would "help us maintain our solvency and the viability of the fund", he said.
"Unfortunately, Queensland workers are injured or killed in the workplace and we need to have a stable and secure compensation scheme in place."
Victoria's average premium rate would now be the lowest in Australia, at 1.338 per cent of payroll. Brusasco noted that Queensland's 2011/12 rate would be the country's second lowest, and "well below" the rates in South Australia (2.75%), NSW (about 1.66%) and Western Australia (1.547%).
Enrol NOW for Postgraduate study in
Personal Injury Management
Trimester 2, 2011
Trimester 2 enrolments are now open and will
close on Tuesday 7 June 2011
This email does not apply to you if:
· you have already enrolled in Trimester 2, 2011
· you do not intend to study in Trimester 2, 2011
· you have already asked me to enrol your units for Trimester 2, 2011
· you have completed your program and have accidentally received this notification
If you are unable to enrol for whatever reason, please don't hesitate to contact me as some units will not allow you to complete this process online.
Re-enrolment Process:
Ensure you have identified which unit(s) you want to enrol in. You should know the title of the unit and the unit code as a minimum. If you do not know which units to select, visit the online handbook www.deakin.edu.au/handbook, refer to the Personal Injury Management Information Booklet or Enrolment Form attached or contact DeakinPrime. For your convenience a list of approved Personal Injury Management units available in Trimester 2 is listed below. Unit descriptors can be found in the attached 2011 PIM Information Booklet.
Course Progression:
Students are advised to review their course progression prior to each enrolment. Students are responsible for monitoring their own course progression and ensuring that unit choice complies with course rules. Course rules can be viewed in the attached information booklet or in the University Handbook. Students can view their course progression on StudentConnect. If you are unsure it is recommended you contact the Personal Injury Management Help Desk.
Important Note - MPM740 Scheme, Policy and Design
We would also encourage single unit enrolment into MPM740 Scheme, Policy and Design. The four day residential component of this unit will be held at Deakin Management in Geelong from 11-14 September 2011 and provides an opportunity for students to network and study as a group. Pre-reading and group work is required in order for the student to effectively participate in a group assignment at the residential, as well as an individual assignment post residential. This unit can also be completed as a single unit (professional development), which means you do not need to enrol in the whole course. It is important to note that this unit cannot be undertaken without participating fully in the residential component. The cost is $4,039. See information attached.
Important Note - MPI702 Applied Business Project:
You will NOT be able to enrol in MPI702 Applied Business Project online. You need to send an email to PIMHelpdesk@deakinprime.com requesting enrolment in this unit.
New Enrolments:
If you are new to the program, you will need to complete the hard copy enrolment form attached and return with required documentation.
If you know of any students interested in commencing postgraduate study in Personal Injury Management with Deakin University/DeakinPrime, please ask them to contact the Personal Injury Management Helpdesk at PIMHelpdesk@deakinprime.com or on (03) 9918 9106.
If you have trouble re-enrolling online, please email me.
Residential Enrolment Process:
If you are intending to complete a residential in 2011, it is very important you register your Expression of Interest (EoI) at the following link:
http://www.deakin.edu.au/buslaw/dbs/residentials/register.php
Important Study Dates: refer attached 2011 PIM Trimester and Residential Dates
Trimester 2, 2011
Withdrawal Policy:
If you withdraw post census day you will be liable for your unit fee and no refund will be available. International students please refer the international student withdrawal policy in the student guide.
Students wishing to withdraw must advise the Personal Injury Management Help Desk.
Please find attached:
If you require further assistance or information, please do not hesitate to contact the Personal Injury Management Helpdesk at PIMHelpdesk@deakinprime.com or on (03) 9918 9106.
The next in the Bruce Thomas Lawyers ASIEQ workshops is to be held on 2nd June 2011
For further details please see the attached flyer.
Confirmation can be sent to Alex Cox-Taylor at act@btlawyers.com.au.
The Queensland Safe Work Awards are now open.
Join Safety Ambassador, Mal Meninga and enter the Safe Work Awards to be rewarded and recognised for your workplace health and safety achievements.
Enter yourself, your business or nominate someone else.
Awards open - 4 May 2011
Awards close - 11 July 2011
For further information view the Awards booklet attached, visit the Workplace Health and Safety Queensland website, or call the Workplace Health and Safety Infoline on 1300 369 915.
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