Sterling Law secures indemnity costs order against QBE

Background

For the last 4 years, we doggedly pursued a claim on behalf of a client who was kicked by a horse.

By the time our client saw a solicitor of our firm, he had been denied WorkCover because on review it was determined he was not a worker within section 11 of the Workers’ Compensation and Rehabilitation Act 2003. Things were looking very grim. It seemed that there was no way for our client to access compensation or any damages.

Our Legal Practitioner Director decided to instead pursue a damages claim under the Personal Injuries Proceedings Act 2002 (PIPA). Subsequently, at the PIPA compulsory conference, one lawyer for a defendant asserted that we had erred by not following the process under the Workers’ Compensation and Rehabilitation Act 2003 instead. All lawyers at the compulsory conference except our Legal Practitioner Director were in complete agreement that the claim had no merit, and our client only received offers of $nil under PIPA.

When we commenced proceedings, the defendants applied to strike out the claim on the grounds that we had not complied with the Workers’ Compensation and Rehabilitation Act 2003 and by pursuing the claim under PIPA we had selected the wrong statute. Our Legal Practitioner Director appeared sans Counsel against two barristers and successfully resisted this attempt to stop the claim in its tracks.

Barry Nilsson, solicitors for QBE Insurance and one of Brisbane’s top insurance firms, still gave us no chance. Neither did the other lawyers representing the defendants, including Counsel. Even a District Court Judge who is a silk highly knowledgeable in civil matters suggested that our client may have been an independent contractor and therefore no duty of care was owed to him.

Subsequently, the matter proceeded to trial and in one of the greatest upsets in Queensland legal history, our client was 90% successful on liability with damages awarded. No appeal has been filed against this decision. Argument about costs immediately ensued and the decision on costs was reserved so that QBE’s lawyers could make further submissions on costs.

Costs

The remaining issue to be determined was the costs of the proceeding.

On 23 April 2021, we had offered to settle for $130,000 exclusive of the WorkCover refund but inclusive of costs and all other statutory refunds.

On 2 November 2021, we offered to settle for $150,000 inclusive of costs and all statutory refunds.

Neither offer was accepted by any of the defendants.

Full story: https://sterlinglawqld.com/sterling-law-secures-indemnity-costs-order-against-qbe/

Stewart Boyd’s stunning upset in District Court after horse kick

The following facts were uncontentious:

• from about 5 October 2017, the Plaintiff Stewart Boyd lived at 328 Biddaddabba Creek Road, Biddaddabba, Queensland (“the property”);
• Businessman Tony Govesis owned and occasionally visited the property, where he had exclusive use of part of the main residence;
• Des Trindall, a struck off securities advisor, lived at the property and occupied the balance of the main residence;
• Mr Boyd, Trindall and Govesis each owned horses;
• Govesis’ horses were depastured at the property;
• a website advertised horse-training services at the property (“the website”);
• the website listed the names of Trindall and Govesis, and their contact telephone numbers;
• on 3 November 2017, at the property, Mr Boyd was kicked by a horse owned by Donna Koitka (“the incident”);
• following the incident, Govesis required Mr Boyd — who had previously lived rent-free at the property — to commence paying rent; and
• as a result of the incident, Mr Boyd suffered injuries and loss.

It was alleged that Trindall and Govesis were inter alia negligent for failing to provide a safe system of work or to provide appropriate equipment.

3 differing accounts

At the trial, three parties each gave substantially differing accounts as to what occurred leading up to the incident. In summary:

Mr Boyd’s evidence was that he was approached and encouraged to take up residence at the property, and to work horses there, by statements separately made to him by Trindall and Govesis that he could live rent free, he would not be required to make payments towards the utilities and he would receive an income of between $50,000 and $150,000.

Trindall’s evidence was that he merely acted as an intermediary between Mr Boyd and Govesis and he left the meeting of 14 October 2017 after some 30 minutes of “small talk”.

Govesis’ evidence was that he never spoke with Trindall about getting someone on the property to work with horses and he had no dealings with Mr Boyd prior to the incident, and only saw Mr Boyd in passing when he went to the property to mow the lawns.

Trindall’s credibility

Trindall gave evidence that Mr Boyd had offered him an aeroplane if he provided a statutory declaration saying that he was employed by Govesis. That evidence was retracted by Trindall when it became apparent that that statutory declaration was executed as a result of an order of the District Court, and the claim that Mr Boyd promised him an aeroplane had nothing to do with it.

Trindall’s evidence included another bizarre claim that Mr Boyd had demanded about $5,900 from him on Facebook. However, no copy of the Facebook message was produced, and Trindall admitted that he had been ordered by the District Court to pay the sum of $5,905.80, and that was the amount to which he was referring.

Trindall’s evidence concerning the website was equally troubling. He denied that the website had anything to do with him, and claimed that Mrs Trindall was proficient at designing and building websites, and in 2017 advertised and promoted their business relating to horse services. But he conceded that he was involved in promoting the website, he took videos for it and the website was used for a business being conducted at the property.

Govesis’s credibility

Govesis’s evidence about the number of times he had met Mr Boyd was contrary to his own statutory declaration which had claimed he had only met Boyd once in passing.

Govesis’s evidence was that he was happy to allow Mr Boyd to live at the property without paying rent until after the incident when he was no longer able to work horses. There was no evidence other than his own assertion that the Trindalls had been paying him less rent after Mr Boyd was injured. That was not accepted by Trindall, and no bank statements or records were produced that could have supported this claim.

Especially critical was the evidence of Govesis that Mr Boyd would have to pay rent after the incident — having been allowed rent-free accommodation before the incident — because he “needed to pay his way”.

Govesis, who was agitated in the course of his cross-examination on behalf of Mr Boyd, then decided to answer each question asked of him with “I don’t know”, sometimes even before the question was finished.

The unchallenged evidence

There was no evidence that Mr Trindall or Mr Govesis took any steps to mitigate the risk of Mr Boyd being kicked by a horse at the property. It is plain that they breached their duties of care because they made no effort to or pretence at discharging those obligations.

On the unchallenged evidence:

(a) there was a simple and practical way to mitigate the risk, by the provision of a horsewalker, crush or other barrier to protect a person working, breaking and training horses; and

(b) this precaution is one commonly taken by people involved in those activities.

There is not a jot or tittle of evidence to suggest that it was either impracticable, or economically unviable, to adopt a measure which could have saved Mr Boyd from serious injury.

• On the Plaintiff’s evidence, largely unchallenged and entirely uncontradicted:

(a) the provision and use of appropriate safety equipment, in the form of a horsewalker, crush or other barrier, would have prevented Mr Boyd’s injuries; and

(b) had such equipment been made available, Mr Boyd would have used it.

Full story:

Stewart Boyd scores stunning upset in District Court after horse kick

District Court stays claim because of Australian Financial Complaints Authority’s bureaucratic bumbling — Sterling Law QLD

Westpac’s social responsibility department reacts to the banking Royal Commission.

It is well known that many public bodies these days are obsessed with political correctness and identity politics, and spend a lot of their time fussing on topics such as equity, diversity, inclusion, harmony days, ‘unconscious bias’, and the like. Once can only imagine that they hold regular meetings where they talk about topics such as their gender pronouns, paleo pear and banana bread, and what a relief that in a few months time the Morrison federal government will be replaced by a Labor-Greens Coalition, but how the ideal would be a Greens Government with Adam Bandt as Prime Minister and socialism being tried once again.

Supporters and apologists of this frivolity often use the cliché that organisations can “chew and walk gum at the same time”, however a recent District Court decision to stay a proceeding as a result of bureaucratic bumbling undermines such claims.

The facts

The Australian Financial Complaints Authority is an external dispute resolution scheme that is supposed to deal with complaints from consumers and small business about financial products and services. 

The following case reveals that the extent to which AFCA deals with complaints is doubtful, however we were elated to find out that what is not in doubt is that it commemorates ‘Transgender Day of Remembrance‘, and on its own admission everyone at AFCA recently wished us a Happy Mardi Gras.

On 25 November 2019, ANZ Banking Group applied to the District Court for recovery of possession of mortgaged properties on the basis that the debt that is secured by those mortgages had not been paid by the respondent debtors. The debtors then made complaint to AFCA, which resulted in the proceedings being adjourned pending AFCA’s determination. In September 2021, AFCA belatedly issued what it called a recommendation, which was not binding on the parties.

Barlow DCJ decided to stay the proceedings because of the delay occasioned by AFCA.

Read more:

District Court stays claim because of Australian Financial Complaints Authority’s bureaucratic bumbling

Things to do at the scene of a car accident — Sterling Law QLD

Getting in a car crash can be a jolting experience. But it’s important to be proactive and think about what to do in the immediate aftermath.

Things to do at the scene of a car accident — Sterling Law QLD

Dr Patel sues his own lawyers

The Courier Mail today reports that Former Bundaberg hospital surgeon Jayant Patel is suing his defence team for $884,000.

The article suggests that Dr Patel’s  case is that his solicitors and barrister were too inexperienced to properly defend him, and this inter alia resulted in them failing to obtain full particulars of the charges, a comprehensive signed written proof of evidence containing his responses to the charges or consider the need to retain expert evidence to rebut medical expert witnesses’s allegations regarding his competence to perform the operations.

Reasonable forseeability of injury to employees

Introduction

The recent 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.