Insurance Law

Insurance Law

Authors: Stephen White, Partner and Rebecca Wilson, Solicitor

It’s official!  Labour hire workers are at greater risk of being injured at work than ordinary employees.1 Workers’ compensation premiums for labour hire employees are also higher than premiums for employees generally.2 Anecdotally at least, so are public liability premiums and deductibles for businesses who regularly use labour hire staff.

None of these issues will come as a surprise to casualty underwriters or corporate users of labour hire providers.

In response to these and other issues affecting the labour hire industry, the Queensland Parliament has enacted the Labour Hire Licensing Act 2017 (Qld) (Act), which will come into effect on 16 April 2018.  This newsletter examines the scope and reach of the new laws, possible effects on claims frequency and whether there are opportunities for casualty underwriters and corporate users of labour hire services to take advantage of the new legislation to more clearly evaluate the likelihood of injuries and claims.
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Authors: Stephen White, Partner and Milton Latta, Senior Associate

In our last Insurance newsletter, we discussed liability issues arising out of the decision in Paskins v Hail Creek Coal Pty Ltd[2017] QSC 190. This article explores the quantum issues in that decision.

Varying approaches can be taken to the assessment of future economic loss for plaintiffs working in the mining industry. The approach often taken is to apply a greater than usual discount to allow for such factors as pre-existing injuries, uncertainties in the market place, and uncertain residual earnings capacities. 

McMeekin J has previously adopted such an approach in many of his judgements. Paskins is a further example of this. The unusual feature of this case is the much greater than usual discounting applied, which makes it an important decision to be aware of when assessing claims in a mining context.

The purpose of this article is to examine what factors can justify the imposition of a greater than usual discount when assessing future economic loss.

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The last 20 years has seen a significant shift from companies utilising full time workers to part-time, casual and especially labour hire personnel.  In addition, many companies have structured their operational arrangements in a way which has seen them utilise corporate structures where the workforce is employed by entities separate from the trading entities and those which own the physical assets of the group: so-called ‘captive labour hire’ arrangements. As recently as five years ago, terms such as the ‘gig economy’ had not entered the common vernacular.

The type of arrangements mentioned tend to be more common in the construction, mining and manufacturing sectors where workforce flexibility is essential to maintain company profitability as firms compete for a smaller pool of available work in the post mining boom economy.

These gradual but significant changes in workforce structures have also seen a shift in the risk profiles of companies utilising these arrangements to deliver projects. Anecdotally at least, more transient workforces can lead to increased pressures on safety and workplace systems and potentially greater risks of incident and injury.  For companies using labour hire personnel, this may mean that there is an increased chance of those personnel suffering injury or causing injury to others.

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This rare referral to the High Court makes clear that the narrative test of serious injury laid down by the Victorian Supreme Court in Humphries v Poljak1 25 years ago remains good law. There must be a subjective assessment of a claimant’s injury and the impact this has had on him/her and thereafter an objective assessment, to determine how that injury sits on the spectrum of comparable cases, considering all factors.

A similar test of serious injury exists in the Accident Compensation Act 1985 (Vic) and Workplace Injury and Compensation Act 2013 (Vic). Accordingly, this decision of the High Court is equally relevant to common law claims that arise in a workplace context, which potentially involve a range of defendants, including host-employers, manufactures and occupiers.

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As Hurricane Irma barreled through Florida, it left a path of destruction and uncertainty. First and foremost, we hope that you and your families are safe and recovering well from the storm. We also want you to know that, if you sustained any damage, we are here to provide you with guidance and counsel during the insurance claim process and help ease your uncertainties.

As you may know, insurance policies are complex contracts with many pitfalls and nuances. The failure to properly navigate the insurance policy and claim process can delay payment of benefits to you, result in an underpayment of benefits and/or denial of your claim. Although the applicable terms and conditions of your policy(ies) will control the mutual rights and obligations of you and the insurance company, below are some of the most frequently asked questions to assist you and your friends, colleagues and business relationships in this process:

Read more: After Hurricane Irma: Weathering Your Insurance Claim