LAW204 TORTS B 2014 NOTES - Amazon Web Services€¦ · LAW204'Torts'B'2014'Notes' ' ' 2' ' LAW204...

School of Law

LAW204 TORTS B

2014

NOTES

LAW204'Torts'B'2014'Notes'' '

2''

LAW204 TORTS B COURSE OUTLINE

Introduction

Course description This course continues your introduction to the law of torts with primary emphasis on negligence. You examine the development of this tort throughout the 20th century and consider the impact of reforms in 2003 which sought to stem its use. You will also consider defences to this tort, types of harm which are compensable in a negligence action, assessment of damages, the concept of vicarious liability, assessment of damages between multiple wrongdoers, statutory compensation schemes and the operation of statutory limitations that limit the time for proceedings.

Topics

This course is designed to develop knowledge and understanding of the following:

o the elements of the tort of negligence o the contexts in which the tort of negligence is applicable including the

employment relationship, motor vehicle collisions, entry on to land, the activities of public authorities and the actions of health professionals

o the defences to the tort of negligence and the operation of statutory limitation periods

o the assessment of damages when there is liability for negligence o the circumstances in which the harm caused by negligent conduct, other than

physical injury, is compensable, such as damage to property, pure psychiatric harm and pure economic loss

o the operation of statutory schemes under which people can be compensated for injury or loss including workers’ compensation and the national disability insurance scheme

o the concepts of vicarious liability and contribution between multiple wrongdoers


3''

Assessment

There will be three items of assessment: 1. A problem solving assignment !due by 5pm Friday 29 August 2014.

This assignment is worth 25% of the final mark. The length of the assignment is 1500 words.

2. Tutorial problem and discussion ! advised in tutorials. This assignment is worth 25% of the final mark. The length of the assignment is 1000 words.

3. A 24-hour take-home examination which will be worth 50% of the final mark. The examination will be conducted on a date to be advised during the examination period which extends from 10 November to 21 November 2014.

Useful additional reading: Lists of required and recommended readings may be found for this course on its Blackboard site. These materials/readings will assist you in preparing for tutorials and assignments, and will provide further information regarding particular aspects of your course. ARTICLES If you have been notified that the journal articles in this course are available on e-reserve, use the on-line library catalogue to find them. For journal articles not on e-reserve, click on the "Journals and Newspapers" link on the Library Homepage. Enter the journal title e.g. History Australia, then search for the volume and issue or keyword as needed.


4''

Week 1 – Lecture - An overview of the tort of negligence: evolution, significance of insurance, Civil Liability Act reforms, impact of those reforms

Issues for consideration: • What is the history of the tort of negligence? • How did an array of actions on the case become the tort of negligence? • What is the significance of Donoghue v Stevenson? • What interests are protected by the tort of negligence? • What social functions does the tort of negligence fulfill? • What other regulatory mechanisms could be used to fulfill these functions? • Is the tort of negligence a satisfactory means of corrective justice—compensating

people who sustain damage because of the wrongful acts of others? • Is the tort of negligence an effective means of deterring risky activities? • Are signs an effective means of disclosing risk and deterring risky activities? • Why haven’t we adopted other means of compensating people injured by the

wrongful acts of others or of reducing the occurrence of risky activities? • What role does insurance play in compensating people injured by the wrongful

acts of others? • What role does insurance play in deterring risky activities? • What are the elements of the modern tort of negligence? • What barriers to recovery for loss are created by these elements? • Why was the Ipp Committee established? • What did it recommend? • How has the Civil Liability Act 2003 (Qld) changed the common law of negligence? Required reading: Sappideen, pp 8-19 Materials on Blackboard Additional reading: Balkin & Davis, pp 7-15 Fleming, Ch 6 Luntz, Ch 1 Mendelson, Ch 1

Lecture 1

Introduction to Torts B

• Overview

1. The mechanics of the course

2. Torts

3. The tort of negligence

4. The history of the tort of negligence

5. The elements of the tort of negligence

6. The Ipp Committee reforms

7. Negligence in Queensland in 2014


5''

• 1. The mechanics of the course

• All relevant documents will be posted on Blackboard

– Course outline

– **Reading guide**

– Tutorial problems

– Assessment items

• Two lecturers

– Neil Rees (course co-ordinator)

– Alex McKean

• One tutor

– Sharne Hobill

– The mechanics of the course

• Three assessment items

– Assignment – written advice to a client – due by 5pm 30 August 2014 (25%)

– Tutorial presentation and written advice about an assigned case: case allocation today – due at tutorial two weeks after presentation (25%)

– 24-hour take-home examination: during the examination period – 10-21 November 2014 (50%)

• Attendance at lectures and tutorials not compulsory but strongly recommended

– Lectures recorded; PowerPoint’s on Blackboard

– The mechanics of the course

• Torts A and Torts B should be seen as part of a continuum providing a two-semester introduction to the law of torts

– In practice the most important tort is negligence

– The tort of negligence is legally complex and sometimes difficult to apply in particular factual settings

– Torts B is devoted to negligence, statutory compensation schemes and remedies (usually $$$)


6''

– Torts A was devoted to torts other than negligence

– The prescribed texts are designed for use in both Torts A and Torts B

– 2. Torts

• A tort is a civil wrong for which the law provides a remedy (usually payment of damages).

– It provides a cause of action for people who are wronged

• The law of torts imposes obligations upon people not to act in a way that causes damage to others.

• The law of torts grants people rights to a remedy (usually damages) when a person breaches an obligation owed to them.

• Torts

• The law of torts regulates activities between members of the community

– It seeks to ensure that people behave in a way that respects the interests of others

– Many people – and most large corporations – take positive steps to comply with their obligations in torts

– Many people take out insurance to protect themselves against possible liability in tort – it is sometimes compulsory to insure

– Individuals must enforce their own legal rights in torts but it is sometimes very difficult to do so without expert legal assistance

– 3. The tort of negligence

• Negligence is the most important modern tort in terms of both impact upon the community and cost

– In 2001 Spigelman CJ described the tort of negligence as ‘the last outpost of the welfare state’

• Judges generous with decisions and damages awarded

– Professor Harold Luntz responded by saying:

• ‘No welfare state would ever have created a system so irrational, expensive, wasteful, slow and discriminatory’

– The tort of negligence has become extraordinarily complex


7''

– The complexity of the common law is exacerbated by the fact that it has been amended, in part, by legislation – the Civil Liability Act 2003 (Qld)

• The tort of negligence

• The tort of negligence has two major functions:

– Corrective justice – it is a means by which one person harmed or damaged by the fault of another can receive damages or compensation for their loss

– Regulating risky activities – it imposes standards of care upon those who engage in activities where there is a risk of harm to others

• It is contentious whether it successfully fulfils either function

• Insurance (compulsory or otherwise) underpins most negligence litigation


• The tort of negligence affects numerous activities of modern life including:

– Road users

– Suppliers of goods and services including professionals (such as lawyers and doctors) and public authorities

– Employers and employees

– Occupiers of land and land users

– Participants in sporting competitions


• Torts protect various important human interests by providing people with rights to enforce obligations owed to them.

• The interests protected by the tort of negligence include:

– Bodily integrity including mental health and well-being

– Ownership and possession of property

– Some economic interests


• No arm of the state checks whether people comply with their standard of care obligations under the tort of negligence


8''

– Sometimes there will be an overlapping criminal or regulatory offence (e.g. road traffic laws; food laws)

– We must all take our own steps to manage the risks of committing the tort of negligence

– Risk is usually managed by (1) insurance; (2) being aware of potentially risky activities and taking steps to minimise them or to warn people of their existence (signs); or (3) a combination of (1) and (2).

• 4. The history of the tort of negligence

• The tort of negligence has evolved from actions on the case where one person sustained physical injury or property damage because of the carelessness (negligence) of another

• In earlier times matters of procedure and legal rights and obligations were far more intertwined than they are today

– The ‘writ system’ largely dictated the circumstances in which one person could sue another for damages

– The history of the tort of negligence

• The common law developed various categories of cases where the relationship between the parties gave rise to a right to sue where P sustained damage because of the negligence of D; e.g.

– Professionals such as doctors and lawyers

– Common carriers

– Innkeepers

– Occupiers of premises

• The history of the tort of negligence

• Rapid advances in technology in the 19th and early 20th century increased the circumstances in which one person could be injured by the negligence of another; e.g.

– Railways

– Factories

– Motor vehicles

– Mass produced products

• The need for new categories was constantly growing


9''


• In Donoghue(v(Stevenson((1932) the House of Lords developed an overarching theory for determining when one person owes a legally enforceable duty to another not to injure them by a negligent act

– P went to a cafe operated by M with her friend X

– X purchased a bottle of ginger beer from M for P

– The bottle of ginger beer was manufactured by D and supplied to M

– M poured some of the ginger beer (which was in an opaque bottle) into a tumbler of ice cream which P consumed


– As X proceeded to pour the remainder of the bottle of ginger beer into the tumbler for P a decomposed snail emerged from the bottle

– P sustained ‘gastro-enteritis and nervous shock’

– P had no cause of action in contract against M (the café proprietor) or D (the manufacturer of the ginger beer)

– The common law recognised no general category where a manufacturer of goods owed a duty of care to the ultimate consumer

• The House of Lords decided (3-2) that P should succeed.


• Lord Atkin said:

In English law there must be, and is, some general conception of relations giving rise to a duty of care…The liability for negligence…is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay…

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question ‘Who is my neighbour?’ receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure your neighbour.


– Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.


10''

• Lord Atkin then went on to apply the ‘neighbour principle’ to the facts of the case.


• Lord Atkin described the outcome of the case as follows:

– …[A] manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.


• Since Donoghue v Stevenson the range of circumstances in which the tort of negligence is applicable has grown far beyond that which was reasonably foreseeable in 1932.

• Now, 82 years after Lord Atkin developed the ‘neighbour principle’ we still have no definitive answer to the question: ‘Who, then, in law is my neighbour?’

– Parliament chose not to deal with this question when it passed the Civil Liability Act in 2003.

• 5. The elements of the tort of negligence

• The elements of the tort of negligence are deceptively simple. They are:

1. D owed P a duty of care (duty)

2. D breached the duty of care owed to P (breach)

3. D’s breach of duty caused damage to P which is not too remote (causation and damage)

• There is an enormous amount of case law dealing with the three elements

• In practice, the elements often overlap.

• The elements of the tort of negligence

• The term negligence is often used with two quite distinct meanings:

– As a shorthand for the tort of negligence

– When referring to the second element of tort – breach of the duty of care (requires a negligent act or omission)


11''

– Be careful!

• 6. The Ipp Committee reforms

• All Australian states (and territories) passed similar laws in 2002/2003 in response to dramatic increases in insurance premiums and the perception that the law of negligence was out of control

– All the reforms are based on the Ipp Committee Report

– Civil Liability Act 2003 (Qld)

– The legislation is not precisely the same in each state; e.g. provisions in the Civil Liability Act 2002 (NSW) and Wrongs Act 1958 (Vic) not all the same as those in Qld

• 6. The Ipp Committee reforms

• The major changes brought about by the Civil Liability Act 2003 (Qld) include:

– Caps on damages

– Changes to the way in which some damages are assessed

1. Proportionate liability

– Changes to way in which breach of duty is assessed both generally and in relation to specific activities such as:

1. Dangerous recreational activities

2. The activities of medical practitioners and other professionals

3. The activities of public authorities

4. Liability for damage when P is intoxicated

5. The effect of an apology and an expression of regret

• 7. Negligence in Queensland in 2014

• In Queensland the law concerning the tort of negligence is now found in interconnected statutory and common law rules

– Must look at both to determine the law

– The courts decide what the sections in the Civil Liability Act mean but Parliament can change the law at any time

– Decisions of interstate courts dealing with their versions of the Civil Liability Act are useful but beware:


12''

1. They are not binding in Queensland

2. Check whether the interstate statutory provision is the same as that in the Queensland Act

Further reading:

Reading (text statute cases):

Materials on Blackboard ; Sappideen Ch 7; Barker Ch 8

Sappideen pp8-19

Theoretical approaches to tort law ! Deterrence theory

o If wrongdoer is made to pay for accidents, he will try to avoid accident o More likely criminal prosecution Will act as deterrent

! To reduce costs of accidents o Loss spreading

" Insurance o Loss shifting

" Fault principle ! Transaction costs ! Corrective justice

o And agent is responsible for all and only is intentional activities o Only responsible for actions that he could have avoided

" One can only avoid what one can foresee • Reason for foresee ability concept in negligence

! Distribute losses


13''

Week 1 – Tutorial

30 July 2014 BREACH is there an established duty- what (find established cases) – if not establish need argument why/why not - cases What is the reasonable standard applicable here? - cases Has the standard provided fallen below the duty? – cases Tests Reasonable person test Was the risk of injury foreseeable – also in causation Various others – look at context CAUSATION Prove injury caused by breach of duty – failure to provide a reasonable standard of care caused injury on balance of probabilities Work backwards from injury to determine if cause Care with intervening events that break chain of causation Is risk too remote/unforeseeable DAMAGE Contrib neg comes in here Pure economic loss Need some loss Must be caused by breach Damages include funeral costs and amounts to dependants if die Damages of infant killed

damage to parents Loss of chance cases no longer available – can say shortened life expectancy


14''

Week 2 – Lecture - An overview of statutory compensation schemes: workers compensation, compulsory third party insurance, national disability insurance scheme

Issues for consideration:

! Workers’ compensation in Queensland o Eligibility for compensation under the Workers Compensation and

Rehabilitation Act 2003 (Qld) o Compensation payable under this scheme o Interaction between workers compensation and common law damages

claims ! The Queensland ‘fault-based system’ for recovery for personal injuries

sustained in motor vehicle collisions o The role of compulsory third party insurance (CTP) o Functions of the Motor Accident Insurance Commission (MAIC) o The role of the Nominal Defendant o Compensation when there is no-one at fault o No fault schemes in other Australian jurisdictions

! Criminal injuries compensation o Eligibility for compensation under the Victims of Crime Assistance Act

2009 (Qld) o Compensation payable under this scheme

! The National Disability Insurance Scheme (NDIS) o Eligibility for compensation under the NDIS o Compensation payable under the NDIS

Lecture 2

STATUTORY COMPENSATION SCHEMES

• WORKERS’ COMPENSATION

Compensation for workplace injury in Queensland is governed by the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘the WCRA’).

The WCRA sets out a scheme where workers who suffer injuries connected to their employment in Queensland can claim compensation. The WCRA provides for ‘statutory compensation’, medical treatment, rehabilitation and weekly benefits to replace wages while a worker is unable to work due to the injury.


15''

To access those benefits, the worker need not show the injury was caused by any fault of the employer, simply that it was connected to the employment.

• Statutory Compensation vs Common Law Damages

The statutory compensation scheme under the WCRA must be contrasted with scheme governing access by workers of common law damages for workplace injury.

A statutory claim will usually come to an end when all reasonable treatment has been attempted and there is medical opinion to the effect that the injury is not going to improve. At that point the worker can have their injury assessed to see if it has produced permanent impairment.

If there is permanent impairment, the worker is offered a lump sum payment.

• Statutory Compensation vs Common Law Damages - cont’d

To be eligible to claim common law damages, a worker generally must have had an assessment for permanent impairment, have more than 5% permanent impairment and, unless there is 20% or more permanent impairment, have not accepted the lump sum offer.

In addition, to access common law damages, the worker must be able to prove the employer was negligent and that negligence caused the injury.

This lecture will deal with statutory compensation under the WCRA, the damages procedures will be discussed later in the semester.

• Eligibility for Compensation – Worker

The term ‘worker’ is defined in section 11 of the WCRA. It provides a worker is someone who works under a contract and is an employee for the purposes of PAYG assessment.

Schedule 2, Part 1 of the WCRA sets out ‘who is a worker under particular circumstances’. This includes: sharefarmers, salespersons on commission, some contractors, lent workers and labour hire workers.

Schedule 2, Part 2 of the WCRA sets out ‘who is not a worker under particular circumstances. This includes: company directors, trustees, partners, professional sportspeople, crew of fishing vessels paid a share of the catch, driving instructors and people on ‘work-for-the-dole’ schemes.

• Worker vs Independent Contractor


16''

The most important practical distinction when determining whether a person is a ‘worker’ is to determine whether they are an independent contractor.

In simple terms, a worker is employed under a contract of service, for example a factory worker employed to operate a particular machine for set hours.

An independent contractor is employed under a contract for services, for example a technician brought into the factory to repair a faulty machine in the factory.

• Worker vs Independent Contractor cont’d

It can sometimes be very difficult to determine whether an individual is a worker or an independent contractor. Sometimes an employer and even the worker themselves will believe a person is not a worker.

In Hollis v Vabu [2001] HCA 44, the High Court developed six factors for determining whether a particular relationship is employee (worker) or independent contractor:

1. does the person provide skilled labour or have special qualifications, could they operate as a freelancer and generate goodwill?

2. what degree of control does the person have over the manner they do their work and is their control with respect to incidental or collateral matters only?

3. is the person presented to the public as an emanation of their employer? This factor looks at uniforms etc provided by the employer

4. policy considerations of deterrence of sham arrangements

5. was the person paid as a PAYG worker or did they submit invoices?

6. whether the person provides their own tools and equipment?

• Eligibility for Compensation - Injury

The second element for entitlement to statutory compensation under the WCRA is that the worker must have suffered an ‘injury’ as defined in the WCRA.

Section 32 of the WCRA provides that an ‘injury’ is a ‘personal injury’. This term is not sensibly defined elsewhere in the WCRA. Guidance is given further in s 32 where it says ‘injury’ includes: diseases contracted in the course of employment, aggravations of a personal injury, disease or medical condition, loss of hearing or death.


17''

• Eligibility for Compensation – Connection to Employment

Section 32 of the WCRA provides a worker has suffered an ‘injury’ if they suffer a personal injury arising out of, or in the course of, employment if—

(a) for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or

(b) for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.

Until late last year, the requirement of ‘significant contributing factor’ applied across all injuries.

• Physical Injuries – Significant Contributing Factor

There have been a number of decided cases where argument was confined to whether the workers employment arose out of, or in the course of, employment and employment was a ‘significant contributing factor’ to the injury.

In some cases in can be quite difficult to determine whether employment has been a significant contributing factor to an injury.

• Significant Contributing Factor

In Qantas Airways Ltd v Q-Comp and Michelle Blanch [2009] QIC 20, the worker was a long-haul flight attendant residing in Brisbane. She had a 48-hour stopover in Los Angeles, staying in a hotel paid for by Qantas, and was given an allowance for sundry expenses.

The worker walked from the hotel to a nearby shopping centre. As she was walking back she was hit by a cyclist and sustained injuries.

President Hall found the test was satisfied and employment had been a significant contributing factor to the injury. He said but for the employment the worker would not have been in Los Angeles, the employer foresaw she would have to leave the hotel and encouraged her to do so, by not allowing her charge meals to the hotel account, and by telling workers to control fatigue by going for walks.

• Psychiatric Injuries – Major Significant Contributing Factor

Recent changes have introduced a new test for psychiatric injuries. Now a worker must show their employment was the major significant contributing factor to the injury.


18''

This change appears to be driven by employer concerns that workers suffering psychiatric injuries perhaps arising as the result of a number of factors, some work-related and others not, were being paid compensation.

In Qantas Airways Ltd v Q-Comp and Michelle Blanch [2009] QIC 20, President Hall said of the word ‘significant’, ‘I am not prepared to accept the submission that ‘significant’ bears the meaning of ‘large’, ‘great’, ‘weighty’ or ‘substantial’. He fixed the meaning of the term as ‘towards the lower end but not at the base of the spectrum’.

Presumably, the court would hold the addition of the words ‘the major’ prior to ‘significant’ would mean the requirement is moved further along the spectrum toward the higher end, making it more difficult to prove psychiatric injuries are connected to employment.

• Psychiatric Injury – Reasonable Management Action

Section 32(5) of the WCRA also removes from the definition of the term ‘injury’, a psychiatric condition which has been caused by ‘reasonable management action taken in a reasonable way’.

Examples of ‘reasonable management action’ are provided in the WCRA, as: action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment.

There has been considerable litigation in this area. See: Delaney v Q-Comp [2005] QIC 11 and Q-Comp v Education Queensland [2005] QIC 46.

• Eligibility for Compensation – arising out of, or in the course of, employment

The injury must arise out of, or in the course of, employment.

In Lackey v WorkCover (2000) 165 QGIG it was held that ‘arising out of’ was wider than ‘caused by’ and, but still involved some causal or consequential relationship between workplace events and the injury

This is not required where the injury occurs during an ordinary recess from employment (section 34(2) WCRA) or while on a journey to or from work (section 35 WCRA).

• Eligibility for Compensation – Geographical Requirements

Section 113 WCRA provides compensation will only be payable where the employment of the worker is connected to Queensland.


19''

Provided this is satisfied, the worker need not actually be in Queensland when they suffer the injury.

• Eligibility for Compensation – Time Limits

Section 131 WCRA provides the worker must lodge an application for compensation within 6 months of the ‘entitlement to compensation arising’.

• Compensation payable under the WCRA

Broadly, once a claim is accepted by WorkCover, the worker is entitled to be paid: weekly benefits or total or partial work incapacity, hospital, medical, rehabilitation and medication expenses and associated travel and accommodation expenses.

Section 210 WCRA provides that costs of medical treatment or hospitalization must be paid if the insurer considers they are reasonable, having regard to the nature of the injury.

In practice, whether these expenses are paid is determined by claims managers operating on the basis of medical evidence directed at whether the particular treatment or expense is connected to the accepted workplace injury and whether it is a reasonable form of treatment for that injury.

• WCRA Compensation – when entitlement starts/stops

Section 141 WCRA – entitlement starts on date worker is first assessed by a doctor. Weekly benefits do not start until worker stops work because of the injury.

Section 144A WCRA – weekly benefits cease when: there has been 5 year of incapacity, the incapacity ceases or the maximum amount of compensation has been paid ($250K +).

Section 144B WCRA – payment for treatment and associated costs ceases when no longer required for the injury or unlikely to improve with further treatment.

• Compensation on Death of Worker

See Chapter 3, Part 11 WCRA.

Compensation is payable for the death of a worker survived by total or partial dependants, with compensation being apportioned between those dependants.


20''

Dependants are generally members of a persons family, ie: spouse, defacto, children, parents and siblings.

Medical expenses for treatment up to death and funeral expenses can also be covered.

• WCRA – Relationship Between Statutory Compensation and Common Law Claims

The WCRA limits the access of workers seeking to claim damages for injuries caused by the negligence of their employer. The WCRA common law scheme will be discussed in more detail later in the semester.

Section 237 WCRA – generally, worker can only seek damages against employer if they have received a notice of assessment for the injury (been through entire statutory claims process.

It has been held there is no entitlement for a worker to seek damages against an employer outside the WCRA.

See: Watkin v GRN International Pty Ltd [2006] QCA 382 where a prison officer was injured while working for his Qld employer in the Solomon Islands. He lodged an application for compensation seeking statutory benefits but this was rejected on the grounds the worker had not been in Qld. The rejection was upheld on review.

The worker tried to make a claim against the employer under the Personal Injuries Proceedings Act 2002 (Qld), but it was held this mechanism could not be used to pursue a damages claim against an employer.

• COMCARE

In practice in Qld, sometimes will deal with people who will fall under the Comcare scheme, generally covers Commonwealth employees rather than State employees who will be under the WorkCover scheme.

• Application of the Comcare Scheme

The Comcare scheme covers federal government employees, ie: of the ATO or Centrelink.

It also covers employees of ‘licensees’ which are generally large employers with operations throughout Australia, who have chosen to insure their workers through the Comcare scheme rather than a variety of State schemes.


21''

Licensees include Linfox Australia Pty Ltd and Telstra Corporation Ltd. A list of current licensees is available at:

http://www.srcc.gov.au/self_insurance/current_licensees

An employee is covered by the Comcare scheme if their injury occurs after the date the employer joined that scheme.

• Eligibility for Compensation

Section 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘the SRCA’) is the ‘gateway’ for accessing benefits under Comcare.

It provides: ‘subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

The term ‘injury’ includes disease, injury (physical or mental), that arose out of, or in the course of employment, or an aggravation thereof.

For psychiatric injuries there is a ‘reasonable administrative action’ exclusion.

• Compensation Payable Under this Scheme

Reasonable medical and like expenses (s 16 SRCA)

Weekly benefits for incapacity for work (s 19 SCRA)

Difference from WorkCover – benefits payable as long as work-related injury produces incapacity and need for treatment. Can run for decades, where most WorkCover statutory claims cease in less that 12 months.

Death benefits for dependants (s 17 SCRA) and funeral expenses (s 18 SCRA)

• Comcare Lump Sum Payments

Lump sum payments can be made for permanent impairment (ss 24 and 27 SCRA).

LAW204 TORTS B 2014 NOTES - Amazon Web Services€¦ · LAW204'Torts'B'2014'Notes' ' ' 2' ' LAW204...

Documents

Transcript of LAW204 TORTS B 2014 NOTES - Amazon Web Services€¦ · LAW204'Torts'B'2014'Notes' ' ' 2' ' LAW204...