Public Liability

[Jaba-who]

That doctor with no insurance was on a tv current affairs show. I think the assets were in his wife's name.

Remember the " bottom of the harbor "schemes, where the legal responsibility was found to reside in a homeless person and the money transfer documents were in the bottom of the sea. I think they worked, at least for a while.

 

But I agree that the courts probably have the power to nullify any such schemes these days, if they are convinced the arrangement was just a ploy to work around the law. 

 

The family trust I referred to earlier had been in place for many years before the nasty wife arrived on the scene.

I'd be instantly sceptical if the source were a current affairs type program. Media and reporters have as much medical knowledge as they do aviation knowledge and their subject portrayal is usually heavily slanted away from truth and toward sensational story. 

 

 

[Bruce Tuncks]

They interviewed the doctor, who was fairly old, they  showed the sign and interviewed a couple of patients, one of whom was staying and the other one was going to move elsewhere.  Doctors pay horrendous premiums I think, and our local practice ceased doing births because of insurance costs.

 

With respect to aviation, I wondered if the club here could somehow transfer its legal  liability to a renting pensioner  we had as a member at the time.  Nothing came of that, it was just some idle speculation on my part.

 

About that time, there was a flurry in the news when a surf-lifesaving club in Adelaide announced they were going to close down because the committee of the surf club were told that they were risking their personal property in the event of litigation. In response to this, the state government passed some legislation which I think fixed the problem, at any rate the lifesaving club didn't close down.

 

 

[facthunter]

 Plunging into the water is more acceptable than plunging out of the sky and a "life saver" sounds better than  a flyer of a home made plane who might fall on innocent people who didn't request it and deserve to be protected from such foolhardiness. .Nev

 

 

[turboplanner]

They interviewed the doctor, who was fairly old, they  showed the sign and interviewed a couple of patients, one of whom was staying and the other one was going to move elsewhere.  Doctors pay horrendous premiums I think, and our local practice ceased doing births because of insurance costs.

With respect to aviation, I wondered if the club here could somehow transfer its legal  liability to a renting pensioner  we had as a member at the time.  Nothing came of that, it was just some idle speculation on my part.

 

About that time, there was a flurry in the news when a surf-lifesaving club in Adelaide announced they were going to close down because the committee of the surf club were told that they were risking their personal property in the event of litigation. In response to this, the state government passed some legislation which I think fixed the problem, at any rate the lifesaving club didn't close down.

You can't hand off a Tort; that sign wouldn't have helped the doctor evade his duty of care.

 

The surge in governments handing control of sporting and volunteer organisations started in South Australia with deaths at a kindergarten, so the most likely thing the government did for the lifesavers was advise them to tale out event-based public liability insurance. We were paying $1000.00 per meeting and were back in business before we physically closed any tracks.

 

 

[Jaba-who]

You can't hand off a Tort; that sign wouldn't have helped the doctor evade his duty of care.

The surge in governments handing control of sporting and volunteer organisations started in South Australia with deaths at a kindergarten, so the most likely thing the government did for the lifesavers was advise them to tale out event-based public liability insurance. We were paying $1000.00 per meeting and were back in business before we physically closed any tracks.

The point isn’t that having no insurance avoids negligence or removes a duty of care. 

 

He could always have a claim made against him  if someone  wanted to but it does decrease the value of the defendant as being a source of money to pay. 

 

If he truly had no assets and was at an age where the minute a summons appeared he shut down the practice and retired there’d be nothing they could get out of him so it might be a futile costly  excercise to sue. 

 

Tuncks - malpractice insurance is now far less expensive  and a Non-procedural GP would not have big premium costs ( and there is now government support programs to assist with indemnity premiums if they reach a certain percentage of the practice income but this really only comes into effect with high risk specialties like obstetricians, neurosurgeons and a few other specialists now. 

 

With the change in tort law the limits of awarded money’s dropped significantly in the early 2000s and premiums fell accordingly.  My premiums dropped by about $15000 per year. But some are still higher than most people’s income. 

 

 

[Jim McDowall]

But what about the pediatric specialists widow who has to keep all his notes etc for 21 years after his last consult and lives in fear of an insurance claim for that time?

 

 

[Jaba-who]

But what about the pediatric specialists widow who has to keep all his notes etc for 21 years after his last consult and lives in fear of an insurance claim for that time?

Yep and not only paediatricians. Any doctor who has treated a child. The time you have to keep them is actually till the child’s majority plus 7 years. Majority currently being 18 years so it may be 25 years if you see a newborn the day you retire. 

 

The insurance isn’t that big a problem as all the main insurers carry “run off” cover. So any case you saw before you retired so long as you had active insurance at the time you saw the patient is covered for ever as long as you have actually retired.  ( as long as the insurer is in existence. It’s a bit of a concern if they close down or go broke - but so far I’ve not heard of it. ) 

 

 

[Bruce Tuncks]

And not only doctors. I knew a guy who had repaired gliders. Those gliders could still involve him in a liability payout even though he is no longer insured and no longer in the business.

 

 

[turboplanner]

And not only doctors. I knew a guy who had repaired gliders. Those gliders could still involve him in a liability payout even though he is no longer insured and no longer in the business.

This is a very common situation; a mechanic retires and five years later a car he worked on is involved in an accident due to not following the manufacturer's safety procedures etc. 

 

Jaba Who explained the clause a few posts ago.

 

 

[turboplanner]

This was followed immediately by various versions of how to avoid your civic responsibilities, which would be good reading for the insurance industry, but the significance of this case is your obligations to your passengers. This person was sentenced to five years for injuring his passengers.

 

The key theme were his navgation failures, and his failure to observe a hazard, things relevant to most of us in flying.

 

S4528.pdf

 

 

[KRviator]

This was followed immediately by various versions of how to avoid your civic responsibilities, which would be good reading for the insurance industry, but the significance of this case is your obligations to your passengers. This person was sentenced to five years for injuring his passengers.

 

The key theme were his navgation failures, and his failure to observe a hazard, things relevant to most of us in flying.

 

S4528.pdf

But how is that different to Christian Scholl, the arsewipe who drove his B-Double into the side of a passenger train at Kerang and killed 11 people. The only substantial difference, is Scholl drove that route weekly, for 5 years and knew the level crossing was there but still drove at a speed that meant he couldn't hold short of the stop line when he observed the crossing lights were activated and his actions resulted in the worst rail accident since Granville.

 

Sometimes I wonder just how 'justice' is served...

 

 

[turboplanner]

But how is that different to Christian Scholl, the arsewipe who drove his B-Double into the side of a passenger train at Kerang and killed 11 people. The only substantial difference, is Scholl drove that route weekly, for 5 years and knew the level crossing was there but still drove at a speed that meant he couldn't hold short of the stop line when he observed the crossing lights were activated and his actions resulted in the worst rail accident since Granville.

Sometimes I wonder just how 'justice' is served...

We can't compare cases at this (forum) level because we don't have the legal qualifications, and we were not in each court room to hear all the evidence.

 

For similar reasons we can't extract from the news reports why a pilot who was charged with descending below 500 feet above a river was charged with manslaughter but found not guilty.

 

What we can do with the bus case though is look at what happened to the driver and why, and perhaps touch up our navigation and observation skills for when we carry passengers.

 

 

[turboplanner]

This is the first case I've seen of a government suing a company and driver.

 

A Kalari road train carrying about 50 tonnes of ammonium nitrate caught fire "in front of the windscreen" according to the driver.If this was a bonneted truck, that location would have been the rear of the engine compartment in front of the firewall. The driver's reaction was to pull off the road, and while the story doesn't say, it looks as if he rolled off the bridge which was destroyed.

 

The Warrego Watchman is listing the claim at $11.8 million.

 

This is before the Courts so we can't speculate on the details.

 

The driving period reported in the Brisbane Times is a prescribed law, similar to the CAR requiring a pilot to fly above 500' agl. In addition to fatigue laws, the transport industry has prescribed Chain of Responsibility laws which make not only the driver responsible for breaches, but everyone in the management chain who might have been involved in pressuring a driver to exceed driving hours. That might or might not come into this case.

 

This is the msds for ammonium nitrate

 

https://msds.orica.com/pdf/shess-en-cds-010-000032017701.pdf

 

https://www.brisbanetimes.com.au/national/queensland/8-million-lawsuit-launched-after-truck-explosion-which-injured-eight-20190109-p50qd1.html

 

 

[onetrack]

I've never seen so much BS and straight-out lies, in the reasons given for the truck driver running off the road with a load of ANFO.

 

1. If the fire started in the engine bay, he would have had plenty of time to go past the bridge, and then swerve off onto the shoulder.

 

Engine bay fires are common, they are caused by electrical short circuits and burst hoses spraying oil onto very hot exhaust manifolds and turbochargers.

 

I have never seen a crash caused by an engine bay fire. You can still steer in a fairly straight line for a km or more, even with flames licking the windscreen, using peripheral vision.

 

2. If there had been a tyre on fire prior to the crash, there would be a black line of molten rubber up the highway - which can't be seen in the photos.

 

3. If a tyre was on fire, he still would have had plenty of time to avoid the bridge, and steer off onto the shoulder, past the bridge.

 

4. Drivers ploughing their vehicles into bridge railings, is caused, 99.9% of the time, as a result of simply going to sleep at the wheel.

 

5. The crash happened at 2150 hrs. That's right on "normal" bedtime for most people (and for the body clock), and the time of greatest danger of falling asleep at the wheel - particularly after a 14 hour work day.

 

I've driven somewhere around 3,000,000 kms and put in a lot of long hours at the wheel - long before driving hours were regulated. I've seen a very large proportion of crashes caused by simply falling asleep at the wheel.

 

The danger periods for falling asleep at the wheel, are "normal" bedtime, and just on sunrise. Not everyone is aware of this.

 

"Sleepy" foods containing ingredients that lead to high levels of tryptophan in the body, are also another reason for falling asleep at the wheel.

 

Foods such as chicken (chicken thighs in particular) and cheese, are notorious for producing high levels of tryptophan.

 

I've nearly run off the road myself a number of times, due to fatigue, and due to food consumed. I've had family members do the same - including the SIL who went to sleep at sunrise, after an 0300 hrs start.

 

It's frightening when it happens, and it happens a lot. You only have a couple of seconds to avoid disaster, most times. Yet in a lot of cases, a different reason for the crash, is the conclusion.

 

A good lawyer would roast this driver over the reasons given for hitting the bridge railing, and expose his fabrications.

 

He's taking advantage of the total destruction of the truck and trailers, and the elimination of evidence, as a godsend to cover his story.

 

 

[facthunter]

 Fatigue is associated with normal circadian rhythms. (body day night cycle) In pilot studies, which would not be that much different, it was found the lowest performance levels were around 3 am( 0300.) of the place where you are adjusted to. If you transit time zones it's different. Adrenalin helps if you have time for it to kick in, which is often the case with flying situations.. Not so much on the road. Nev

 

 

[turboplanner]

OT, what you're saying sounds pretty much, according to the news reports, is what the government is thinking.

 

 

[onetrack]

Seems like a shoe-in to me, TP, I don't understand why the insurance company hasn't just paid out, I reckon they're on a hiding to nothing, and they are still going to have to pay out, and they'll be also buying a fleet of new Beemers and Mercs for the lawyers.

 

It's surprising that this happened, Kalari have a pretty good track record - but effective fatigue management in the trucking industry still has a way to go, IMO.

 

 

[Jaba-who]

Seems like a shoe-in to me, TP, I don't understand why the insurance company hasn't just paid out, I reckon they're on a hiding to nothing, and they are still going to have to pay out, and they'll be also buying a fleet of new Beemers and Mercs for the lawyers.

It's surprising that this happened, Kalari have a pretty good track record - but effective fatigue management in the trucking industry still has a way to go, IMO.

They may be working on refusing to cover it because of the potentially alleged illegal actions of the driver. ( exceeding fatigue times ) 

 

I’ve got a couple of mates who have had insurance claims refused on claims that work had some illegal element in it which negated the contract. They never actually had proof but just said they believed there were issues (while the insurers hunted for excuses to not pay out). In both cases they had to sue the insurers who eventually admitted there were no grounds for not paying out but took several years to get to that point. 

 

The insurers I think hope that a lot of claimants will just give up. In this case though I would have thought government is probably going to keep on at it. 

 

 

[turboplanner]

I asked this question a few days ago:

 

"How are you going to deal with someone who says “I know there’ are safety regulations there but I disagree with them, so I’m going to disregard them?"

 

It's been the Achilles heel of Self Administration where a healthy number of people decide to wing it.

 

Governments have dipped their toes in the water with Acts like Victoria's Road Safety Vehicles Regulations 1999, because people just didn't see Self Administration rules as applying to them, and the legislation introduced Offences to help them understand, so you might be sued for $11,000.00 by a quadriplegic and cop a $255.00 fine for breaching a regulation under the Act as well.

 

That tack apparently hasn't had the desired effect and the Victorian Government announced yesterday, that there was substantial non-compliance with swimming pool safety, and it is introducing a permit and audit system for backyard pools.

 

Owners will need to apply for a permit for their pool through the local Council. From memory the cost is about $48.00 The Council will carry out audits of all pools every three years, and where a pool is found to be non-compliant there will be a $385.00 fine.

 

The reason for this is multiple findings of non-compliance by coroners investigating drownings.

 

Note that the Government will not be stepping in with instructors who will sign off pools, just having their agent the local Council identify all pool owners, and audit (a hands off version of inspect and sign off).

 

It is going to be very expensive to have a pool in the back yard in the future as a result of the people who didn't bother with safety items in the past.

 

 

[turboplanner]

I asked this question a few days ago:

 

"How are you going to deal with someone who says “I know there’ are safety regulations there but I disagree with them, so I’m going to disregard them?"

 

It's been the Achilles heel of Self Administration where a healthy number of people decide to wing it.

 

Governments have dipped their toes in the water with Acts like Victoria's Road Safety Vehicles Regulations 1999, because people just didn't see Self Administration rules as applying to them, and the legislation introduced Offences to help them understand, so you might be sued for $11,000.00 by a quadriplegic and cop a $255.00 fine for breaching a regulation under the Act as well.

 

That tack apparently hasn't had the desired effect and the Victorian Government announced yesterday, that there was substantial non-compliance with swimming pool safety, and it is introducing a permit and audit system for backyard pools.

 

Owners will need to apply for a permit for their pool through the local Council. From memory the cost is about $48.00 The Council will carry out audits of all pools every three years, and where a pool is found to be non-compliant there will be a $385.00 fine.

 

The reason for this is multiple findings of non-compliance by coroners investigating drownings.

 

Note that the Government will not be stepping in with instructors who will sign off pools, just having their agent the local Council identify all pool owners, and audit (a hands off version of inspect and sign off).

 

It is going to be very expensive to have a pool in the back yard in the future as a result of the people who didn't bother with safety items in the past.

 

 

[M61A1]

Looks rather cheap compared to somewhere like Brisbane.

 

at least if the fees are reasonable they might get more compliance. 

 

Generally applications are closer to $1000 around here. 

 

 

[M61A1]

Article in The Oz today.....

 

 

 

 

 

 

 

Surge in class action lawfare hits economy

 

 

• 
  EXCLUSIVE
   
   
   
  GEOFF CHAMBERS
   
   
  FEDERAL POLITICAL CORRESPONDENT
   
   
   
  @Chambersgc
   
   
  
   
   
  
• 12:00AM OCTOBER 30, 2019
   
  
• 102 COMMENTS
   
  

 

An explosion in class action claims funded by overseas litigation backers is threatening investment and jobs in Australia, with more than $10bn in claims lodged against businesses in the last financial year.

Ai Group chief executive Innes Willox has warned that the surge in litigation presented a “clear and present danger” to the nation’s “fragile economy” amid record insurance premium increases and limited regulation to minimise class action exposure.

 

Business, legal and insurance figures have called on the Morrison government to urgently ­address the spike in class action claims in the past two years.

 

 

 

 

The Ai Group, representing the interests of more than 60,000 businesses, will release a seven-point plan on Wednesday aimed at reining in class action claims before they damage the economy.

 

“Investment and jobs are threatened and business insurance costs are going through the roof. The Australian gov­ernment needs to act now to rein in speculative and costly class ­actions before they materially damage our economy,” Mr Willox said.

 

“Overseas litigation funding firms have moved into Australia in a big way due to the fact that class actions in Australia are subject to scant regulation, compared with other countries such as the US and UK.

 

“Overseas investors should not be permitted to make super-profits at the expense of Aus­tralian businesses and jobs.”

 

The Australian understands $10bn is a low estimate in relation to overall claims made against Australian businesses, and there were growing fears that start-ups and corporations unable to service insurance costs would move offshore.

 

The Australian understands of the 54 prominent class action cases commenced in the last fin­ancial year, a majority were backed by overseas funders, with leading plaintiff lawyers including Maurice Blackburn, Shine Lawyers, Slater & Gordon and William Roberts Lawyers. Major corporations targeted include Westpac, Domino’s Pizza, Bayer Australia, Santos, Volkswagen Australia and Woolworths.

 

In July, Allianz Global Corporate and Security announced it was abandoning liability cover in Australia following the class ­action surge, declaring it “untenable” to remain in the market.

 

Mr Willox said the government must introduce legislative amendments into parliament to implement a raft of protections. “Regulation cannot be left to the courts. Litigation funding arrangements are financial products and these arrangements need to be regulated like other fin­ancial products,” he said.

 

Mr Willox, who warned that class actions were leading to “massive increases in insurance costs” that could be spent on job creation and investment, said the level of returns sought by some litigation funders and plaintiff law firms was “unconscionable and have been criticised by the courts”.

 

“Workers are being enticed to join some of the class actions through, what many would argue, is misleading and deceptive conduct,” he said.

 

Mr Willox said the government must act quickly on Australia’s “lax class action laws” to protect the economy from speculative class action claims.

 

The seven-point plan calls on the government to regulate litigation funders through the Australian Securities & Investments Commission, impose reasonable limits on returns to plaintiff lawyers and litigation funders, and prohibit litigation funders from exerting any control over the positions and arguments prosecuted by law firms.

 

The Ai Group also asks to expose plaintiff lawyers and litigation funders to adverse costs orders for unsuccessful class ­actions and to increase the current minimum number of plaintiffs and implement a “predominance rule” that operates in the US requiring common issues among claims. The peak industry group also wants the government to implement a preliminary or certification hearing process, under a similar system operating in the US.

 

Colin Biggers & Paisley Lawyers head of class action practice Michael Russell said the rapid increases in class actions had been sparked by “local and overseas litigation funders” expanding their operations and investments into Australia. “Australia is now seen as the most attractive jurisdiction for litigation funders to set up. This has come at a huge cost to the Australian economy because Australia has now become a far more difficult, expensive and high-risk place to do business,” Mr Russell told The Australian.

 

“Some insurers have left the Australian market citing class ­action losses and exposures as too significant to maintain a viable insurance business in Australia.”

 

Mr Russell said litigation funders were coming to Australia with “enormous amounts of capital seeking to replicate the high returns that have been achieved by other litigation funders in Australian litigation in recent times”.

 

“Litigation funding is big business globally, particularly as traditional investments such as the equity and capital markets have become increasingly regulated and increasingly volatile,” he said.

 

The class action defence lawyer said the funding market for shareholder class actions had become “completely saturated over the past two years”.

 

“That’s resulted in litigation funders looking for alternative or less traditional types of litigation to invest in, with no shortage of enthusiasm or entrepreneurship. You only have to observe there have been no less than 12 funded employment and industrial class actions announced or begun in the past 18 months to see how eager funders are to deploy capital.”

 

Insurance broker Bellrock managing director Marc Chiarella said spikes in premiums for directors’ and officers’ liability insurance were linked to losses and uncertainty of shareholder class actions. He said 45 per cent of all SCAs commenced in the past 20 years were notified from 2016 on.

 

“All of these remain unresolved. Market statistics suggest for the 2016 year, against the Australian D&O market of $250m in gross written premium, $400m was reserved in claims. It gets worse. For the 2016 to 2018 period, reserves are estimated at $1.8bn,” Mr Chiarella said.

 

He warned that the risk to smaller companies was greater than larger businesses that could self-insure and have bigger budgets for internal compliance and risk management staff.

 

 

 

 

GEOFF CHAMBERS

 

 

FEDERAL POLITICAL CORRESPONDENT

Geoff Chambers is The Australian’s Federal Political Correspondent. He was previously The Australian’s Canberra Bureau Chief and Queensland Bureau Chief. 

 

 

 

 

 

[turboplanner]

Surge in class action lawfare hits economy

 

 

• 
  GEOFF CHAMBERS
   
   
   
  FEDERAL POLITICAL CORRESPONDENT
   
   
   
   
   
   
   
   
  

 

 

This is a story about Class Actions; where large numbers of people are injured or killed and are packaged into a single claim.

 

There are penty of sordid stories about how lawyers are paid on a percentage of the total claim, so go about recruiting as many people as they can to make the pot as big as they can. Who knows if this happens.

 

The story balances the volume of class action PL claims against Australia's "fragile economy", and says investment and jobs are threatened, but doesn't produce a total for claims nor the degree of threats. Most of our jobs are not in areas where there are going to be multi-billion$ claims.

 

The story also confuses Public Liability, where the big dollar risks are, with Directors and officers insurance, which is a smaller field; the $400 million future pot quoted probably amounts to less than $30 per employee.

 

While Allianz pulling might make news, my past history is we were taking advantage of US critical mass by insuring with US companies in the mid 1980s.

 

What I think may have prompted this is a big Australian settlement which has led to US Tort companies seeking to match Australia's success with the Multi-National company which lost the case.

 

 

[M61A1]

 

This is a story about Class Actions; where large numbers of people are injured or killed and are packaged into a single claim.

 

There are penty of sordid stories about how lawyers are paid on a percentage of the total claim, so go about recruiting as many people as they can to make the pot as big as they can. Who knows if this happens.

 

The story balances the volume of class action PL claims against Australia's "fragile economy", and says investment and jobs are threatened, but doesn't produce a total for claims nor the degree of threats. Most of our jobs are not in areas where there are going to be multi-billion$ claims.

 

The story also confuses Public Liability, where the big dollar risks are, with Directors and officers insurance, which is a smaller field; the $400 million future pot quoted probably amounts to less than $30 per employee.

 

While Allianz pulling might make news, my past history is we were taking advantage of US critical mass by insuring with US companies in the mid 1980s.

 

What I think may have prompted this is a big Australian settlement which has led to US Tort companies seeking to match Australia's success with the Multi-National company which lost the case.

 

Yes it’s about class actions, but the effect of the PL claims are pretty much the same. Well backed law firms tearing money out of whoever has the deepest pockets and destroying the country, whether financially or through the resulting legislation changes, which hit everyone financially anyway. 

 

 

[turboplanner]

Yes it’s about class actions, but the effect of the PL claims are pretty much the same. Well backed law firms tearing money out of whoever has the deepest pockets and destroying the country, whether financially or through the resulting legislation changes, which hit everyone financially anyway. 

 

The story was written by a journalist.