WA Insurance Update

Case Summary - Casey Marley Duncan v Utilities Management Pty Ltd [2025] SAET 25 

An apprentice who failed to disclose a prior neck injury and drug use during pre-employment screening has had his psychiatric injury claim rejected, with the South Australian Employment Tribunal (SAET) finding the employer acted reasonably in terminating his employment. 

Background 

• Casey Marley Duncan was employed as an apprentice linesman with SA Power Networks, owned by Utilities Management Pty Ltd (Respondent).
• On 23 August 2023, Mr Duncan’s employment was terminated, shortly before the end of his three-month probation period.
• As part of the recruitment process, Mr Duncan was required to submit to a pre-employment medical examination but failed to disclose that he had recently sustained a neck injury and had undergone surgery the year before. After making the discovery and following a formal investigation, Utilities Management terminated Mr Duncan’s employment.
• There was also evidence that Mr Duncan had been using testosterone for body building and was consuming illicit drugs – detail he failed to disclose to the independent psychiatrists who examined him.
• Mr Duncan alleged that his termination caused him to suffer a psychiatric injury and made a claim for compensation under the Return to Work Act 2014 (SA) (Act).
• Utilities Management rejected the claim, and the matter proceeded to trial before Deputy President Judge Gilchrist of the South Australia Employment Tribunal (Tribunal) to decide whether Mr Duncan’s claim was compensable under section 7 of the Act.

Tribunal’s findings 

At trial, Mr Duncan contended that his psychiatric injury stemmed from the manner of his termination, causing him to become incapacitated for work. He argued that Utilities Management did not properly consider his age, limited work experience or his recovery from his neck injury. He also said his drug use only began after the dismissal, as a result of his declining mental health.

Utilities Management argued that Mr Duncan's psychiatric symptoms were due to his drug use, not his termination. They submitted that Mr Duncan’s termination was based on concerns regarding his honesty and integrity. Utilities Management alleged that Mr Duncan’s injury was not compensable as it resulted from reasonable action taken in a reasonable manner regarding his termination under section 7(4) of the Act.

The Court did not find Mr Duncan to be a truthful or credible witness and accepted that his use of testosterone likely began before his employment ended. The expert evidence suggested that anxiety and depression were side effects of testosterone use. The Court also found that the mental health symptoms Mr Duncan experienced, which led the psychiatrists to make their psychiatric diagnoses, were linked to his drug use, rather than the dismissal. 

The Court went on to find that even if Mr Duncan was able to demonstrate that his termination was the significant contributing cause of his injury, Utilities Management’s decision to terminate his employment and the manner in which it was conducted were reasonable. Section 7(4) of the Act provides a complete defence to the claim. While there were some procedural issues in the termination process, the Tribunal confirmed that the test remains one of reasonableness and is ‘not counsel of perfection’.   

Key Takeaways 

This case reiterates that minor procedural flaws in the dismissal process won’t necessarily prevent an employer from relying on section 7(4) of the Act. As long as the decision to terminate the employment, and the way it was carried out, were reasonable in the circumstances, compensation for psychiatric injury can be excluded.

It also highlights the importance of a worker’s credibility in psychiatric claims. If a worker has failed to disclose information to an expert which is relevant to their assessment, the weight and reliability of those expert opinions can be significantly undermined.  

Oz Shut Pty Ltd v Alison Hilton [2025] WADC 10

The WA District Court recently confirmed that workers injured during a deviation from a work journey for a personal errand may still be entitled to compensation. The decision provides useful guidance on when such an injury will be compensable.

Background

• Ms Hilton worked for Oz Shut as a sales consultant.
• On the day of the incident, she drove from Middle Swan to Halls Head to attend a sales appointment.  
• Before the appointment, Ms Hilton stopped at a shopping centre, used the toilet and then went into a Kmart store and purchased a dress for work.  
• As she was exiting Kmart, she tripped and injured her left knee, right ankle and right knee. 

Findings

WorkCover WA proceedings

Ms Hilton lodged a workers’ compensation claim and her employer, Oz Shut, denied liability on the basis that her injury did not arise out of or in the course of her employment.

At arbitration, the arbitrator found that Ms Hilton was injured during a work journey as defined in section 9(1) of the Workers’ Compensation and Injury Management Act 2023 (WA) (Act) and that there was no substantial interruption of deviation from the work journey for the purposes of section 9(2) of the Act, which required that:

• there be a substantial interruption or deviation from Ms Hilton’s work journey; and
• the substantial interruption or deviation was unconnected with Ms Hilton’s employment.

District Court proceedings

Oz Shut appealed the arbitrator’s decision to the District Court, with the key issue being whether there was a substantial interruption or a deviation which was unconnected with Ms Hilton’s employment.

The Court applied the ordinary meaning of substantial ('of real significance, weighty, important') and found that the trip was not a substantial interruption or deviation given that it was negligible in time, being only 15 minutes. 

The Court further found that the interruption or deviation was connected to the employment, and in doing so, the Court found that employees were permitted to engage in personal activities during downtime, so long as they remained on call and contactable. In addition, given Ms Hilton was required to be professionally attired for work purposes, the Court was not persuaded that buying a dress for work was unconnected to her employment.

Oz Shut’s appeal was dismissed.

Key takeaways

This case reinforces that an injury sustained while performing personal errands during a work journey may be compensable. Every case will be decided on its facts, and the surrounding employment context is essential in determining whether a section 9(2) defence arises. 

When assessing whether an injury occurs within the course of employment, it is important to consider the whole of the employment relationship including what has been authorised by the employer, whether the journey occurred during work hours, and the activity the worker was engaged in at the time of injury. 

Case Summary - Lauren Vercoe v Local Government Association Workers Compensation Scheme [2024] SAET 91

An employee who tripped over a pet gate while taking a coffee break at home has successfully claimed compensation, with the South Australian Employment Tribunal (SAET) finding her injury occurred during an authorised break and that her employment was a significant contributing cause. 

Background 

• Lauren Vercoe (was employed by the City of Charles Sturt Council as an Asset Programmer with approval to work from home following the COVID-19 pandemic.
• On 19 September 2022, while working from home, Ms Vercoe was taking a coffee break when she tripped over a metal pet fence that she had temporarily set up to keep her colleague’s puppy that she was dog-sitting away from her pet rabbit (Accident).
• Ms Vercoe sustained injuries to her right shoulder and right knee and made a claim for workers compensation.
• The claim was rejected by The Local Government Association Workers Compensation Scheme (Respondent).
• The matter proceeded to trial in March 2024 to determine:
  • whether the Accident occurred during an authorised break under section 7(5)(b) of the Return-to-Work Act 2014 (SA) (Act); and
  • whether her employment was a significant contributing cause of the injuries under section 7(2)(a) of the Act. 

Findings

Section 7(5)(b) of the Act extends the definition of employment to attendance at a worker’s place of employment during an authorised break.

The Tribunal accepted Ms Vercoe’s evidence that she tripped over the pet fence while on a coffee break and noted that the Respondent explicitly encouraged employees to take such breaks while working from home. 

The Tribunal cited the High Court’s decision of Hatzimanolis v ANI Corporation (1992) 173 CLR 473, where it was found that the Court’s approach must be informed by an understanding of contemporary practices of workers and employers, and the contemporary understanding of what is incidental to employment. 

The Tribunal found that contemporary practices included working from home and therefore that extended to her place of employment. It was held that the Ms Vercoe’s injuries arose during an authorised break from work. 

The Respondent argued that Ms Vercoe had created a unique hazard and that the Accident would not have occurred if she didn’t put up  the pet fence herself.  However, the Tribunal found that an employer does not need to know about a hazard for an injury to be deemed an employment related cause of an injury. It also noted the fact that although Ms Vercoe had control over her work from home set up, it did not remove the connection to her employment. 

The Tribunal ultimately held that Ms Vercoe’s injuries occurred during an authorised break and that her employment was a significant contributing cause.

Key takeaways 

As a result of the COVID-19 pandemic, flexible working arrangements are here to stay. Employers need to grapple with the unexpected risks of employees working from home.

This case highlights the risks employers face in permitting employees to work in locations outside the office. Even if an employer has no knowledge of an employee’s working environment and potential surrounding hazards, they still may be held liable for the injuries sustained by an employee (noting workers compensation is a ‘no fault’ scheme). 

With the increase in flexible working arrangements, employers should consider implementing more comprehensive work from home policies and reviews and encourage employees to report potential hazards in their home workspaces. As this case shows, those steps may not be enough to avoid liability where the injury is still linked to employment.

The decision of Auxiliary Deputy President Magistrate Carrel was appealed to the Full Bench of the SAET in April 2025 and the Full Bench reserved their judgment. The question of whether the legal principles will remain from this decision are still to be seen.

RTWSA v Sweeney [2025] SASCA 50

ReturnToWorkSA appealed to the Court of Appeal against a decision of the Full Bench of the South Australian Employment Court (Full Bench). The appeal raised two key issues:

• whether the primary judge had made an error of law in failing to find that a medical examiner had not adhered to the requirements of section 22 of the Return to Work Act 2014 (SA) (Act) and chapter 9 of the Impairment Assessment Guidelines (Guidelines) when assessing the worker’s noise-induced hearing loss (NIHL); and
• whether the primary judge failed to correctly construe section 106(7) of the Act when finding that the worker was not entitled to the costs of the proceedings.

Background and primary findings

• The worker made a claim for compensation for non-economic loss relating to NIHL after working in a noisy workplace for 15 years.
• Dr Hains, an ENT specialist assessed the worker’s work-related NIHL at 4% whole person impairment (WPI).
• As this was below the 5% threshold required under section 58(2) of the Act, ReturnToWorkSA determined the worker was not entitlement to compensation.
• Before trial, the solicitors for ReturnToWorkSA sent the worker’s solicitors a Calderbank letter, inviting the worker to discontinue the dispute, with an offer to pay reasonable legal costs up to a specified date.
• The matter proceeded to trial in March 2023.
• The primary judge held:
  • Dr Hains could use the ’risk tables’ in the Australian/New Zealand Standard for Occupational Noise Management (AS/NZS 1269.4:2014) (Australian/New Zealand Standard) for the assessment of the work-related NIHL, under section 22 of the Act and chapter 9 of the Guidelines; and
  • the worker was denied costs, because she failed to improve the offer made by ReturnToWorkSA before the trial.
• The worker successfully appealed to the Full Bench where errors of law were identified in the primary judge’s findings.

Court of Appeal’s findings

The Court of Appeal allowed the appeal and reinstated the original decision of the primary judge.

On the first issue, the Court found that the Full Bench had erred in finding that it was not open to the primary judge to accept Dr Hains’ use of the ‘risk tables’ from the Australian/New Zealand Standard when assessing the worker’s non-work-related hearing loss. The Court confirmed that medical assessors are not strictly required to apply the NAL Report method under chapter 9 of the Guidelines where an alternative method is supported by clinical judgement. As a result, Dr Hains’ assessment of 4% WPI was upheld, and the worker remained ineligible for lump sum compensation for NIHL.

On the second issue, the Court held that the Full Bench had also erred in finding that the primary judge had misconstrued section 106(7) of the Act. It found that an offer of legal costs – even without a monetary amount – could constitute a valid offer of compromise under the Calderbank principles. ReturnToWorkSA’s offer to pay the worker’s legal costs up to a specific date was a sufficient trigger to section 16(7), meaning the worker was not entitled to recover her legal costs. 

Key takeaways 

The Court of Appeal’s decision highlights that strict application of the Guidelines by a permanent impairment assessor is not required where there is a justifiable decision on the part of the assessor when using their medical judgement. 

It also emphasises the benefits of cost protection measures, particularly before a matter proceeds to trial. 

Following consultation with stakeholders, WorkCover WA has finalised updates to several approved administrative forms and processes in line with the Workers Compensation and Injury Management Act 2023 (WA).

Key forms affected:

• SF1 – Settlement Agreement
• SF3 – Permanent Impairment Notice
• CN1 – Intention to Reduce or Discontinue Income Compensation – Consent
• CN2 – Intention to Reduce or Discontinue Compensation – Return to Work
• CN6 – Custody or Imprisonment Notice
• APIA3 – Permanent Impairment Assessment Requirement to Attend
• APIA4 – Permanent Impairment Assessment – Provision of Information
• APIA5 – Permanent Impairment Assessment Consent to Provision of Information
• CF2 – NIHL Compensation Claim Form
• NIHL1 – NIHL Audiological Test Report
• NIHL3 – Worker Noise Exposure and Employment History.

It is essential that employers and insurers are across these changes to avoid, in particular, rejection of or requests for rectification of settlement agreements and issuing invalid return to work notices.

What’s changed and why it matters

SF1 – settlement agreement 

The updated form includes additional text intended to clarify that where a worker is receiving income compensation at the time of settlement, the employer is only permitted to cease income compensation as of the date of the registration of the settlement agreement. 

‘In accordance with the Workers Compensation and Injury Management Act 2023, a worker’s entitlement to compensation in respect of an injury to which this settlement agreement relates ceases on the date of registration of the agreement.’

SF3 - Permanent impairment notice 

WorkCover has removed the requirement for the employer’s ABN to be included. Employers and insurers can now indicate whether they agree or disagree with the permanent impairment by ticking a checkbox on the form.  

CN1 - Intention to Reduce or Discontinue Income Compensation – Consent

The CN1 form now includes a note stating that it cannot be used to stop payments where:

• a worker takes leave
• a settlement agreement has been lodged for registration
• consent is sought based on medical evidence about a worker’s capacity for work, in which case a CN3 is to be issued; or
• a worker has returned to work, in which case a CN2 is to be issued.

Despite these limitations, a worker may still be asked to sign a CN1 form for either reduction or discontinuance of income compensation, including as part of conferral for a section 68 application or in other appropriate circumstances. It remains the worker’s choice whether to sign the form or not.

CN2 – Intention to Reduce or Discontinue Income Compensation – Return to Work

The updated CN2 form requires the employer or insurer to declare that the worker has returned to work, and that they hold evidence of the return to work (such as payslips) when issuing the notice.

Before completing and signing the declaration, the employer or insurer should ensure they have sufficient evidence on file that the worker has returned to work. 

CN6 – Custody or Imprisonment Notice

The form now requests the employer or insurer to attach the liability decision notice accepting the claim, and any other relevant information when submitting the notice to WorkCover to assist in processing the request.  

WorkCover WA (rather than the insurer) will then request that the relevant authority complete the ‘Confirmation by Authority’ portion of the form and return it to WorkCover. 

APIA3, APIA4 and APIA5 – Permanent Impairment Assessment forms

Approved Permanent Impairment Assessors (APIA) are no longer required to sign and date these forms.

CF2- NIHL2 Compensation Claim Form

The updated form requires the worker to identify the date the claim form was given to their last employer, and the insurer to identify the date it received the claim form.

NIHL1 – NIHL Audiological Test Report

The form has been amended to include the worker’s recreational history under the Narrative History section.

It also includes  a new table (Assessed Percentage Hearing Loss), which must be completed. The worker’s age at the date of the test and the age correction factor must now be stated.

NIHL3 – Worker Noise Exposure and Employment History

The form now directs that periods of past employment must be recorded in day/month/year format, which is useful as it is more precise for apportionment purposes.

Case summary of Bald v Hesford [2024] WADC 87

The District Court of Western Australia has found both drivers partly responsible for a collision between an overtaking vehicle and a right-turning truck, finding both drivers negligent – but assigning the majority of fault to the driver who attempted to overtake.

Background

• Mr Bald was driving his Isuzu D-Max utility vehicle (ute) southbound on the Coolgardie-Esperance Highway at 110km/h.
• The road was straight and had no central dividing lines.
• Mr Hesford, a farmer, was driving a prime mover with at least one trailer (rig). He entered the highway from a side road (Brown Road) and was preparing to turn right into another side road (Rhind Road) about 700 metres ahead.
• Mr Hesford indicated to turn right approximately 100 metres before the turn and slowed down.
• As he began turning, Mr Bald attempted to overtake. A collision occurred when the left rear of Mr Bald’s ute struck the front right of Mr Hesford’s turning rig. 

Findings

Mr Bald alleged that Mr Hesford failed to keep a proper lookout before turning. In response, Mr Hesford argued that he had indicated in advance and checked his mirrors, and that it was Mr Bald who caused the collision by attempting to overtake when it was not safe to do so.  

The Court firstly considered whether it was safe for Mr Bald to overtake the rig, and considered that Mr Bald either failed to see the rig’s right-hand indicator and brake lights or saw them and chose to overtake anyway. The Court also considered it likely that Mr Bald’s decision to overtake was likely a last-minute reaction and that he failed to see the rig’s right-hand indicator, making it unsafe for Mr Bald to overtake.

The Court then considered whether Mr Hesford failed to keep a proper lookout. While it was accepted that he had looked in his mirrors, it was not established that he looked a second time immediately before turning – including turning his head – because if he did, he would have seen Mr Bald’s vehicle overtaking and would not have turned into its path.

The Court concluded that both parties were negligent. However, Mr Bald’s actions contributed more to the collision than Mr Hesford’s. Attempting to overtake a large, slow-moving vehicle that had clearly indicated a right turn was a serious misjudgement and his decision fell well below the standard of reasonable care.

Mr Bald was found to be 80% responsible, and Mr Hesford 20% responsible for the collision. 

Key takeaways

This decision reiterates that in collisions involving turning vehicles, the Court will assess the conduct of both drivers and determine whose actions involved a greater departure from the standard of a reasonable person in the circumstances.

Saunders v Altieri [2025] WDC 15

The District Court of Western Australia has confirmed that a Writ of Summons will not be set aside solely because a claimant did not give notice of a crash ‘as soon as practicable’ or did not initially seek relief for that delay under section 29A of the Motor Vehicle (Third Party Insurance) Act 1943 (WA) (Act). 

Background

• Mr Saunders was injured in a motor vehicle collision on 13 June 2021.
• His solicitors sent a letter to the Insurance Commission of Western Australia (Commission) on 12 July 2022 advising of his intention to claim.
• The Writ of Summons was issued on 20 February 2024 and did not include a prayer for relief under section 29A of the Act.
• The Commission submitted that because Mr Saunders had not given notice ‘as soon as practicable’ after the crash, and sought relief under section 29A, the Writ of Summons was invalid and should be set aside.

Findings 

The Commission’s application was dismissed. The Court referred to the previously accepted principle that order 12 rule 6 of the Rulesdoes not allow a Writ of Summons to be struck out, but instead allowed a defendant to lodge a conditional appearance reserving the right to apply to set aside the Writ of Summons on the grounds of informality or irregularity.

Whether Mr Saunders had complied with section 29(1) was not to be determined. The Court held that although section 29(1) prohibited an action from being commenced or maintained without proper notice, section 29A provided a remedial mechanism allowing the court to grant relief at any stage of the proceedings, even after the Writ of Summons had been issued.

Although the Writ did not include a section 29A plea, the Court found that this was at most an irregularity, not a fatal defect. The Writ was not invalid or a nullity. The Court relied on previous authorities, including Stojceska v Muharemovic [2017] WADC 9 and Howell v Smith [2018] WADC 63, and distinguished the present case from decisions like Matheson v Commissioner of Main Roads [2001] WASCA 402, noting that section 29A explicitly allows retrospective relief. 

The court retained jurisdiction and declined to set aside the Writ of Summons. 

Key takeaways

Where a notice of a crash is given late, an application to set aside the Writ of Summons may not be successful. Defendants should consider whether to plead non-compliance with section 29(1) in their Defence and allow the Court to determine whether relief can be granted under section 29A.

Hodges v Hicks [2025] WADC 8

In a damages-only trial, the District Court of Western Australia awarded just over $126,000 to a claimant injured in a rear-end crash. The Court scrutinised the credibility of the evidence and found that pre-existing conditions and lifestyle factors limited the extent of her loss. 

Background

• Ms Hodges, a health and safety officer, alleged injuries to her neck, right shoulder, back and right knee because of a rear-end collision in 2015.
• Liability was not in dispute and the matter proceeded to trial for an assessment of damages only.
• Ms Hodges claimed the injuries prevented her from returning to work in a fly in fly out (FIFO) health and safety mining role or continuing her first aid business.
• Ms Hicks (Defendant) submitted that any injuries Ms Hodges sustained were modest and if she had suffered any injuries, loss or damage, they were significantly contributed to by Ms Hodges’ pre-existing medical conditions. 

Findings

The Court formed the general impression that Ms Hodges was heavily invested in her claim and had difficulty not assuming the role of advocate. The Court observed that some of her answers to counsel’s questions were self-serving and argumentative, leading the Court to treat her evidence with caution. 

The Court concluded that Ms Hodges had sustained soft tissue injuries to her neck, right shoulder and back and an aggravation of previously asymptomatic osteoarthritis in the right knee. However, there was no evidence that she required significant treatment. The Court did not accept that the crash caused a serious shoulder injury and placed little weight on the independent review from orthopaedic surgeon Dr Benjamin Kimberley, nine years after the crash. 

At trial, Ms Hodges’ right knee remained symptomatic. In his assessment of non-pecuniary loss, the Court noted that she was not crippled by her injuries and had been able to continue an active lifestyle (jet skiing, skydiving, go karting) since the crash and awarded 15% of a most extreme case. 

As for loss of earning capacity, the Court found:

• at the time of the crash Ms Hodges was working in the health and safety space whilst running a first aid and CRP training business and that the business had never made a profit.
• Ms Hodges had never worked in a FIFO role before the crash, but had obtained a FIFO role at a mining company after the crash, which she later resigned from voluntarily when she was asked to update her first aid certificate. However, she also said her employer did not take issue with not having a current certificate. The Court placed weight on the evidence from occupational physician, Dr Martyn Flahive, that a person’s ability to work FIFO would be role specific.
• The Court concluded that as Ms Hodges obtained a FIFO role after the crash and that she was not incapable of working FIFO, undertaking a FIFO based office role or attending a mine site.
• The evidence also suggested that there was a strong possibility that Ms Hodges would not have worked FIFO for an extended period and lacked competitiveness in an open labour market for a FIFO role and mining management position.
• Ms Hodges was awarded a global sum of $12,500 for future medical treatment to allow for knee replacement surgery being bought forward due to the crash. His Honour was not convinced she required treatment for her shoulder, neck or back due to crash injuries.
• Ms Hodges was awarded total damages of $126,197.01.

Key takeaways

This decision highlights the importance of a forensic, evidence-based approach to assessing causation and future loss. Medical expert evidence and a clear work history were key in limiting the scope of damages. The matter is currently pending appeal. 

McKnight v Miller [No 2] [2025] WASCA 61

The issue of credit hire and mainstream car hire and the discrepancy between charges is one that plagues motor vehicle insurance ligation. McKnight v Miller [No 2] [2025] WASCA 61 in particular is a classic case of the dispute against the credit hire model. 

The case had its origins in the Magistrates Court whereby the Court held that the Respondent (Ms McKnight) was entitled to recover from the Appellant (Ms Miller) the reasonable costs of hiring an equivalent vehicle whilst McKnight’s vehicle was under repair, but not the costs attributable to the added benefits and services that are included with credit hire. 

Background

• On 13 May 2019, a motor vehicle collision occurred between Ms McKnight and Ms Miller, where Ms Miller was found to be at fault.
• As a result of the collision, Ms McKnight’s vehicle was damaged and underwent repairs. During this time, Ms McKnight was provided a replacement vehicle care of CompassCorp Pty Ltd (Compass).
• Compass is a credit-hire company, which provides replacement motor vehicles to the not-at-fault driver involved in a collision, along with additional benefits and services intended to be recovered from the at-fault driver or their insurer. As a result of these benefits, the rates charged by Compass are often significantly higher than mainstream car hire companies. Ms McKnight issued proceedings in the Magistrates Court, seeking recovery of Compass’ charges less a part payment made by the Ms Miller’s insurer, RAC Insurance Pty Limited.
• Ms Miller disputed Ms McKnight’s entitlement to recover the Compass’ charges beyond what is commonly charged through mainstream hire-car companies (often much less than credit hire).
• Ms McKnight appealed the Magistrate’s decision that credit hire charges are non-recoverable from Ms Miller to the District Court of Western Australia.
• The Court allowed the appeal and held that Ms McKnight was entitled to recover the whole of the Compass charges. Ms Miller appealed this decision to the Western Australian Court of Appeal. 

Findings

On 29 April 2025, the Court of Appeal handed down its decision, overturning the District Court’s decision and upholding the Magistrate’s original decision that Ms McKnight was not entitled to recover those costs attributed to the added benefits and services included with credit hire. 

The Court found that Compass’ charges ‘substantially exceeded’ the cost of hiring a comparable vehicle from a mainstream care hire provider. The excess related to features and services, such as convenience protections and credit arrangements, which were not deemed reasonably necessary and therefore not recoverable. 

The decision reinforces the principle that a claimant is only entitled to damages that reflect reasonable loss, not the full cost of premium services when less expensive alternatives would suffice.

Key takeaways

This decision provides clarity on what is claimable when it comes to credit hire charges, especially for added benefits when they far exceed those charges of mainstream hire companies. We expect that the decision will provide guidance to insurers nationwide when faced with credit hire charges, although, we understand this matter may be appealed to the High Court later this year. Stay tuned!

Taylor v Woodgate [2025] NSWDC 89

The District Court of New South Wales has dismissed a Plaintiff’s (Mr Taylor) claim for damages for medical negligence against an orthopaedic surgeon, alleging failure to warn, deficient surgical technique and inadequate post-operative care arising from a hip replacement surgery and subsequent revision surgeries. 

Background

• Mr Taylor had a history of hip issues and was diagnosed with a slipped capital femoral epiphysis in adolescence requiring surgery to insert three Knowles pins to his left proximal femur, two of which were removed two months later.
• In August 2010, he consulted with the Defendant, orthopaedic surgeon, Dr Woodgate, complaining of left hip pain.
• Dr Woodgate performed surgery to remove the remaining Knowles pin from Mr Taylor’s left hip. As the pain continued post-operatively, Dr Woodgate performed a left total hip replacement in May 2011, using a prosthesis including an MSA mini femoral stem.
• In August 2011, Mr Taylor underwent a revision surgery, also performed by Dr Woodgate.
• Following surgery, Mr Taylor consulted Dr Woodgate on several occasions and required further revision surgery for loosening of his left hip prosthesis in April 2019. 

Findings

At trial, Mr Taylor alleged that had he been given adequate advice about the risks of the short stem prosthesis, he would not have undergone the left hip replacement procedure in May 2011. He also alleged deficient surgical technique during the revision surgery in August 2011, claiming Dr Woodgate:

• should have identified the femoral stem was loose intra-operatively and that after revision surgery; and
• failed to adequately investigate his complaints of pain, restricted movement and leg length discrepancy, which would have revealed the loose femoral stem.

There was a significant factual dispute as to what Mr Taylor reported to Dr Woodgate during the consultations. The judge rejected Mr Taylor’s evidence about the alleged failure to warn and accepted Dr Woodgate’s evidence, largely based on his contemporaneous clinical notes. The judge found that Mr Taylor was appropriately advised about the risks and benefits of the left hip surgery in May 2011 and accepted Dr Woodgate’s evidence as to the steps he took during the revision surgery in August 2011 based on his usual practice. 

In relation to Mr Taylor’s consultations, the trial judge readily accepted Dr Woodgate’s clinical notes over Mr Taylor’s recollection as well as Dr Woodgate’s evidence about his usual practice for recording contemporaneous notes during consultations. 

Ultimately, Mr Taylor failed to establish that Dr Woodgate had breached his duty of care. A verdict was entered in favour of Dr Woodgate and Mr Taylor was ordered to pay costs. 

Key takeaways

This case serves as a good reminder about the importance of keeping contemporaneous clinical notes and highlights that accurate and comprehensive clinical notes can play a crucial role in building a strong defence. 

Summit Rural (WA) Pty Ltd Limited v Lenane Holdings Pty Ltd [2024] WASCA 122

The Western Australia Court of Appeal has confirmed that failing to follow a basic safety step under a hire contract – turning off a master key – was enough to ground liability for the destruction of machinery in a fire. The case highlights how courts assess foreseeability and causation in contract and negligence claims. 

Background

• Summit Rural (WA) Pty Ltd leased a Caterpillar 938k Wheel Loader to Lenane Holdings Pty Ltd under a four-year hire agreement.
• Lenane operated a fertiliser plant, and the contract required Summit Rural to turn the master key to the ‘off’ position every night to isolate the battery.
• One night, a Summit Rural employee used the loader and parked it but failed to turn off the master key, leaving it in the ‘on position.’
• The loader caught alight and was destroyed.
• Lenane issued proceedings against Summit Rural for breach of contract and breach of duty of care for failing to place the master key in the 'off' position at the end of the shift, causing them to suffer loss and damage. 

Findings

The Court found Summit Rural’s act of failing to place the master key in the 'off' position was a breach of both contract and a breach of duty of care and that this breach caused the fire, destroying the loader. 

On appeal, Summit Rural disputed that legal causation had been established – stating that the master key’s primary function was battery isolation, not fire prevention. They contended that the fire was too remote a consequence of the failure to turn off the master key and that their liability should not extend to the damage to the loader. 

The Court of Appeal dismissed Summit Rural’s submissions. When discussing breach of contract, reasonable foreseeability played a critical role in assessing causation. The Court held that even where the master key was designed merely to prevent battery drainage, not fire prevention, leaving the master key in the ‘on’ position kept the electrical circuit active overnight. This created a foreseeable risk that ultimately materialised. The fire was not coincidental but rather foreseeable and therefore legal causation could be established. The breach of the contract caused the loss and damage. 

As to breach of duty of care, the Court upheld the trial judge’s decision that Summit Rural breached its duty of care by not turning the master key into the off position. ‘But for’ Summit Rural’s action of keeping the master keys in the ‘on’ position, the loader wouldn’t have caught on fire. 

The Court highlighted that causation at law differs from scientific or philosophical causation and involves a factual question – whether the harm occurred due to an event and whether legal responsibility should respectively be assigned. 

Key takeaways

The case demonstrates that even routine safety steps matter. Where a failure to follow those steps leads to a foreseeable loss, liability may follow – event if the specific harm wasn’t anticipated. Courts will focus on whether the conduct created a real and foreseeable risk, not whether it directly caused the damage in a scientific sense. 

The appeal was dismissed. 

Fussell v Pilbara Iron Company (Services) Pty Ltd [2025] WADC 72

The District Court of Western Australia found that a Principal’s Extension policy that provided cover for ‘common law liability’ did not extend to cover the legal costs of defending the claim – unless clearly stated in the policy wording. 

Background

• Mr Fussell (Plaintiff) was employed by Workpac, a labour hire company that supplied personnel to the Defendant, Pilbara Iron (Defendant). 

• Mr Fussell was injured in a collision involving his truck and a loader operated by an employee of Pilbara Iron. 

• Mr Fussell sued Pilbara Iron, which disputed liability and introduced GIO, Workpac’s insurer, as a third party. 

• Workpac held a policy with GIO that included a Principal’s Extension, potentially extending coverage to Pilbara Iron. 

Key issues

The Court noted that although Pilbara Iron had denied liability, it had not defended the claim vigorously. Damages had been agreed at $1,100,000 before trial.

The crucial dispute was between Pilbara Iron and GIO. WorkPac’s insurance policy with GIO insured it against common law claims for personal injuries. The policy included a Principal’s Extension. 

The central issue was the interpretation of the Principal’s Extension. Pilbara Iron could rely on the extension applying if:

• the accident occurred during the performance of work required by a contract between Workpac and Pilbara Iron, and

• the accident was caused or contributed to by Pilbara Iron’s negligence

Did a contract exist?

GIO argued that WorkPac did not have a contract with Pilbara Iron. Although there was no express written contract for the supply of labour between WorkPac and Pilbara Iron, the Court found that a contract had been formed through purchase orders for Mr Fussell’s services, which incorporated terms of a wider supply contract that WorkPac had with another party. The Court also decided that Mr Fussell was injured during the performance of that contract.

Was Pilbara Iron negligent?

Pilbara Iron admitted fault – both directly and through its employee – and argued that this met the policy’s requirement for ‘Principal’s negligence’, meaning the Principal’s Extension would apply. 

GIO argued that only Pilbara Iron’s own negligence met the definition of ‘Principal’s negligence.’ It did not extend to its vicarious liability.

The court did not rule on that issue, as it found that Mr Fussell’s injury was caused by or contributed to by a breach of a duty owed by Pilbara Iron to Mr Fussell and so the definition of ‘Principal’s Negligence’ was met.  However, it did express some doubt as to whether the cover would extend to another person’s negligence.

Did the policy cover legal costs?

The Court determined that Pilbara Iron could rely on the Principal’s Extension, but that the extension provided an indemnity for ‘common law liability’ which was expressly defined to mean ‘damages due, claimed or paid independently of the Workers’ Compensation Act’ and did not include any reference to legal costs. 

The Court concluded that:

• legal costs were not included in the definition of common law liability

• there was no wording elsewhere requiring GIO to indemnify Pilbara Iron for costs of defending the claim. 

As a result, GIO was only required to cover the award of damages, not Mr Fussell’s legal costs.

Key takeaways

Insurance extensions for principals must clearly specify what is covered. The decision highlights the importance of clear language and certainty of definitions in principal indemnity extensions for both the insurer and insured.

Criddle v Monck [2025] WASCA 44

In a negligence claim against a legal practitioner, the Western Australian Court of Appeal has confirmed that advocate’s immunity protects lawyers from negligence claims – even where the client’s conviction is later overturned – if the alleged negligence is closely connected with how the case was run in court. 

Background

• Mr Criddle was charged with a serious sexual offence and engaged Ms Monck as his barrister for trial. Part of the complainant’s evidence related to the weather conditions on the day of the alleged offence.
• Before trial, Mr Criddle told Ms Monck about weather records which were inconsistent with the complainant’s evidence.
• Ms Monck decided that the weather records would not strengthen Mr Criddle’s defence and did not take steps to obtain them nor challenge the complainant’s evidence on this issue during cross-examination.
• After the first day of the trial, Mr Criddle ended Ms Monck’s retainer and continued self-represented. Mr Criddle was later found guilty and sentenced to three years imprisonment.
• Mr Criddle appealed the conviction on the grounds that there was a miscarriage of justice due to Ms Monck’s failure to obtain the weather evidence and cross-examine the complainant on the issue.
• The Court of Appeal held that Ms Monck’s error regarding the relevance of the weather records, among other issues at trial, deprived Mr Criddle of the opportunity to present an important aspect of his defence.
• Mr Criddle’s conviction was quashed and on retrial, he was found not guilty after serving 15 months imprisonment^[1].

Findings

After his release, Mr Criddle commenced proceedings against Ms Monck for negligence, claiming:

• Ms Monck owed him a common law duty of care to exercise reasonable care, skill and diligence;

  (a) Ms Monck breached that duty by failing to obtain weather evidence and consider its significance before trial; and

  (b) Ms Monck’s negligence was a cause of his imprisonment for an offence he did not commit.

Ms Monck relied on the principle of advocate’s immunity as a complete defence to the claim. At common law, an advocate cannot be sued for negligence by their client for how they handle a case in court or for work done out of court leading to a decision affecting the conduct in court^[2].

On appeal, Mr Criddle argued that advocate’s immunity did not apply where the negligence led to a miscarriage of justice or where the conviction had been overturned.

Justice Howard accepted that Ms Monck breached her duty of care, and that her negligence was a cause of Mr Criddle’s conviction and imprisonment. His Honour found that Mr Criddle’s claim focused entirely on Ms Monck’s negligence out of court, which was intimately connected with the work in court. As a result, the claim was covered by advocate’s immunity and summary judgment was granted against Mr Criddle.

Mr Criddle’s argument in the Court of Appeal was that advocate’s immunity does not apply to out-of-court conduct that results in a miscarriage of justice. The Court rejected this, confirming that immunity for work done out-of-court exists where the work done directly affects how the case is run in court. 

He also argued that any claim of advocate’s immunity could only be made by application of issue estoppel, Anshun estoppel or res judicata – none of which are applicable because his conviction was overturned. 

The Court rejected these grounds of appeal, noting that the purpose of advocate’s immunity is to prevent re-litigation and uphold the finality of judicial decisions. The Court summarised Mr Criddle’s argument as being that advocate’s immunity should only apply where the client is challenging a final decision. In this case, Ms Monck’s alleged negligence led to an intermediate decision (his conviction), rather than the final decision (the overturning of his conviction). 

The Court relied on the High Court’s decision in D’Orta-Eknaike v Victoria Legal Aid^[3], which held that a challenge of an intermediate result would likely involve issues unrelated to the advocate’s alleged negligence. As a matter of policy, the Court found no distinction between intermediate and final outcomes – both fall within the scope of the advocate’s immunity defence. 

The Court also confirmed that advocate’s immunity applies regardless of when the negligence claim is made. Once immunity attaches to an advocate’s conduct ‘once and forever’, it cannot be revisited later based on timing. 

Lastly, the Court dismissed Mr Criddle’s argument that advocate’s immunity only applies to work done, not work not performed. It held that failing to act – such as not obtaining or advising on evidence – is still covered, consistent with the approach taken in Giannarelli v Wraith^[4]where an aspect of the alleged negligence was the failure to advise as to the admissibility of evidence and D’Orta-Ekenaiek where the failure to advise of the ramifications of a guilty plea.

Key takeaways

The case demonstrates that the courts will continue to uphold apply advocate’s immunity where the alleged actions or inactions are intimately connected with the conduct of the court proceedings. 

This decision reinforces that the key consideration is not when the conduct occurred, but whether it directly affected the way the case was presented. Advocate’s immunity exists to protect the finality and certainty of court decisions.