liability hot topics labour hire  slip and fall claims

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Agenda. Labour HireCase Study 1

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liability hot topics labour hire slip and fall claims

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1. Open, introduce and thank audience For regional presentations, please contact Raj for any further information. Open, introduce and thank audience For regional presentations, please contact Raj for any further information.

2. Open and thank audience Open and thank audience

3. Labour Hire Also known as worker to worker liability In simple terms, it is a system whereby employers no longer employ employees Given more accidents happen at work than just about anywhere else, how does this impact the insured? If using a labour hire agency, the Workers Compensation insurer can sue the original company because it is not the same party as the insured Similarly, a third party, who is not an employee is also covered under the Public Liability policy In recent years there has been an increase in frequency and cost of worker to worker personal injury claims. Most often these arise from contractor/subcontractor relationships or labour hire personnel. Demographic factors reveal growth in independent contracting (more than 10% of all workers) as well as in labour hire firms and employment agencies. The severity of injuries eg. Brain injury in this case is symptomatic of a growth in average claim size which for such claims. In recent years there has been an increase in frequency and cost of worker to worker personal injury claims. Most often these arise from contractor/subcontractor relationships or labour hire personnel. Demographic factors reveal growth in independent contracting (more than 10% of all workers) as well as in labour hire firms and employment agencies. The severity of injuries eg. Brain injury in this case is symptomatic of a growth in average claim size which for such claims.

4. Case Study 1: Labour Hire Claim Manufacturing company with different divisions #1 Pty Ltd owns the premises #11 Pty Ltd is a manufacturing entity #15 Pty Ltd employs labour Separate companies confer tax and cost savings An employee of #15 Pty Ltd suffers a massive brain injury as a result of a ceiling collapse in an area being renovated by independent contractors Claim 1: Primo Meats & Ors ats Baghdadi (Claim No 15 0076439) Policy was a Contract Works with liability extension Created for various building works in principal factory at Chullora Client also had Umbrella cover sitting over the $ 6 Week trial - Judgment by Patten J was for circa 14.5M + Costs. Plaintiff appealed. After considerable effort settled at about $21MClaim 1: Primo Meats & Ors ats Baghdadi (Claim No 15 0076439) Policy was a Contract Works with liability extension Created for various building works in principal factory at Chullora Client also had Umbrella cover sitting over the $ 6 Week trial - Judgment by Patten J was for circa 14.5M + Costs. Plaintiff appealed. After considerable effort settled at about $21M

5. Case Study 1: Injured Worker #1 Pty Ltd owner should have ensured the employee could not enter the area being renovated Workers Compensation insurer of #15 Pty Ltd wants a recovery Does the public liability policy respond? Yes, as each company is individually named on the policy Does the Workers Compensation insurer have the right to claim against its own client? Yes, they insure #15 Pty Ltd and are taking action against #1 Pty Ltd If a contractor had been injured, could they also claim against the owner? Depends on who exercised actual control over them. There is effectively no difference between contractors, subcontractors and personnel hired from a labour hire company and they must be treated as third parties. If these third parties are injured whilst engaging in work on our insured’s behalf, an allegation is likely to be made against our insured for failing to provide a safe system of work. Workers Compensation insurers can seek to recover against the liability insurer due to their right of subrogation. Plaintiffs also have an incentive to pursue the liability insurer rather than simply the Workers Compensation insurer because in many jurisdictions, a person’s Compensation rights are significantly restricted by legislation eg. In NSW there is a 15% threshold before someone qualifies for general damages. However, common law entitlements applicable to liability matters are not so restricted and payable as a lump sum, tax free. There is effectively no difference between contractors, subcontractors and personnel hired from a labour hire company and they must be treated as third parties. If these third parties are injured whilst engaging in work on our insured’s behalf, an allegation is likely to be made against our insured for failing to provide a safe system of work. Workers Compensation insurers can seek to recover against the liability insurer due to their right of subrogation. Plaintiffs also have an incentive to pursue the liability insurer rather than simply the Workers Compensation insurer because in many jurisdictions, a person’s Compensation rights are significantly restricted by legislation eg. In NSW there is a 15% threshold before someone qualifies for general damages. However, common law entitlements applicable to liability matters are not so restricted and payable as a lump sum, tax free.

6. Case Study 2: Labour Hire Control Owner operator of an abattoir with 3 staff All other workers and supervisors are supplied by a labour hire company The owner of the abattoir is still very hands on The plaintiff commenced work on 3 October, 2000 and was issued with a face mask The employer arranged for an inoculation of all staff on 16 October Serum ran out before the plaintiff could be injected Plaintiff tested positive for Q fever in April 2001 Plaintiff fell seriously ill in 2004 Claim 2 - Wodonga Rendering & anor ats Tinworth (Claim number 15 0084035 - Finalised 06/2010) Marsh Broadform Liability - Inception date 1997 - transferred to another policy in 2003 - Policy Number was 15 14B2759 PLB. This case highlights the extended duration of many labour hire claims. Average time lag for notification to QBE is 586 days; average time to finalisation is 302 days, so average time lag from date of injury to finalisation is 888 days placing further pressure on reserving and loss ratios. The case also highlights the sorts of occupations and industries with high exposure eg: Seasonal activities – abattoirs, fruit pickers substantially use labour hire companies Large underground mines Construction businesses Industries where back injuries are prevalent eg. Nursing, packing, storepersonsClaim 2 - Wodonga Rendering & anor ats Tinworth (Claim number 15 0084035 - Finalised 06/2010) Marsh Broadform Liability - Inception date 1997 - transferred to another policy in 2003 - Policy Number was 15 14B2759 PLB. This case highlights the extended duration of many labour hire claims. Average time lag for notification to QBE is 586 days; average time to finalisation is 302 days, so average time lag from date of injury to finalisation is 888 days placing further pressure on reserving and loss ratios. The case also highlights the sorts of occupations and industries with high exposure eg: Seasonal activities – abattoirs, fruit pickers substantially use labour hire companies Large underground mines Construction businesses Industries where back injuries are prevalent eg. Nursing, packing, storepersons

7. In the case of TNT v Christie, the NSW Court of Appeal court determined that an employer (labour hire co.) has a duty of care to his employee that cannot be delegated to another party. However, the test becomes one of relative apportionment of blame, that is, which party is negligent, and to what degree. For duty to be established must be actual exercise of control over worker Factors which Court will consider in establishing who owed duty: Degree of access to the premises as between the employer and occupier? The employer's opportunity to inspect them? Employer and occupier's respective states of knowledge of the hazard? Was the employee located on the occupier's premises for a short time or indefinitely, or was he/she moved around? Did the employer have an ability independently to avert the hazard, or only with the consent of the occupier? How long had the relevant hazard been in existence? Had any prior injury been caused by the hazard? Did the hazardous conditions at the occupier's premises vary from day to day, or were they constant? Was the employee injured in the course of his/her normal duties, or were the duties different to what was usual for that employee? Was there any dissimilarity in the employee's ability to draw the hazard to the attention of the occupier, as compared to the employer Who was responsible for training? Was the non-delegable duty of care owed by the employer one that could be discharged by doing nothing, such as a casual act of negligence on the part of the occupier? The respective roles of the employer and occupier in devising and maintaining the system of work? Who controlled the premises? Who supplied any plant and equipment In the case of TNT v Christie, the NSW Court of Appeal court determined that an employer (labour hire co.) has a duty of care to his employee that cannot be delegated to another party. However, the test becomes one of relative apportionment of blame, that is, which party is negligent, and to what degree. For duty to be established must be actual exercise of control over worker Factors which Court will consider in establishing who owed duty: Degree of access to the premises as between the employer and occupier? The employer's opportunity to inspect them? Employer and occupier's respective states of knowledge of the hazard? Was the employee located on the occupier's premises for a short time or indefinitely, or was he/she moved around? Did the employer have an ability independently to avert the hazard, or only with the consent of the occupier? How long had the relevant hazard been in existence? Had any prior injury been caused by the hazard? Did the hazardous conditions at the occupier's premises vary from day to day, or were they constant? Was the employee injured in the course of his/her normal duties, or were the duties different to what was usual for that employee? Was there any dissimilarity in the employee's ability to draw the hazard to the attention of the occupier, as compared to the employer Who was responsible for training? Was the non-delegable duty of care owed by the employer one that could be discharged by doing nothing, such as a casual act of negligence on the part of the occupier? The respective roles of the employer and occupier in devising and maintaining the system of work? Who controlled the premises? Who supplied any plant and equipment

8. Slip and Fall - Claims Example 1 Claim 3 - Goodwin & Kenyon ats Pratt-Dillon (Claim 14 0030343)Claim 3 - Goodwin & Kenyon ats Pratt-Dillon (Claim 14 0030343)

9. Slip and Fall Claims Example 1

11. Slip and Fall Claims Example 2 The client is a cleaning company The onsite cleaning staff sweep the common area 14 minutes later, the plaintiff slips and falls, alleging injury to their lower back requiring a spinal fusion The plaintiff issues proceedings against the cleaner, alleging inappropriate cleaning systems resulted in a spillage Investigations indicate there was no spillage to be cleaned and large volume of traffic had passed – without incident - between the sweep and the slip The plaintiff is seeking in excess of $1.4 million plus costs Attempts have been made to commercially resolve the issue. Mediation has failed and the claim is heading towards trial.Attempts have been made to commercially resolve the issue. Mediation has failed and the claim is heading towards trial.

12. Slip and Fall Claims Example 3 The insured is the owner of a small retail shopping centre The plaintiff slipped and fell as she stepped off a travellator, resulting in an injury to her back The Statement of Claim states the plaintiff has slipped in a green substance CCTV footage shows a black dot bouncing across the screen 13 seconds prior to the plaintiff’s fall No green substance can be seen in the footage The judge agrees he cannot see any green liquid and finds in favour of the defendant Hiken ats AliHiken ats Ali

13. Example 3 - Video

14. Liability Claims: Hot Topics

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