Tue 07 2016

End of financial year WA insurance update

Contents

Case updates

Workplace injuries

State of connection – Queensland or Western Australia?

Strict termination day notice requirement enforced

Casual work found to be concurrent employment

Arbitration appeals: strictly no extension of time

Schedule 2 settlement not binding until forms signed

Section 61 dispute limited to notice

Causation and reasonableness of medical expenses: legal test explained

Res ipsa loquitur – mere occurrence of accident implies negligence

Occupier’s liability

Slippery spillage suit ‘speculative’

Curious collapsing chairs case: recovery awarded

Rare ‘no duty’ finding achieved by occupier

Family accident not covered by home and contents insurance

Trip on protruding paver: local Council not liable

Property liability

Unreliable witnesses and (unproven) hindsight leads to successful recovery

Manufacturer’s liability

Limitations on appeals: finding of fact must be ‘glaringly improbable’ to be overturned

Motor vehicle accidents

Court discusses causation test for negligence

Fatally injured intoxicated pedestrian held two thirds contributory negligent

Medical malpractice 

Health professional not negligent if there is more than one treatment option

‘Widely accepted practice’ provision: standard of care, not statutory defence

Fast Facts

Amendment to definition of industrial award

Variations in Prescribed Amount and other payments under the Workers’ Compensation and Injury Management Act 1981 (WA)

WorkCover issues new consultation directive for interlocutory applications

Damages Assessment Summary Table


Case updates

Workplace injuries

State of connection – Queensland or Western Australia?

The WA District Court has recently delivered another decision on the vexed ‘state of connection’ jurisdictional question, following on from the Court of Appeal’s recent decision in Ethnic Interpreters and Translators Pty Ltd v Sabri-Matanagh [2015] WASCA 186.

Mr Goldman allegedly sustained severe brain damage after suffering heat stroke while working for Ribshire Pty Ltd (outdoors and in enclosed spaces in high temperatures) at the Christmas Creek Expansion Project in the Pilbara region of WA.

Mr Goldman initially claimed compensation in WA. The claim was rejected in WA and then accepted by WorkCover Qld. However, WorkCover Qld later reversed its position.

Mr Goldman then applied to the WA District Court to determine the dispute. Mr Goldman contended that he had originally applied to work in Qld and had discussed the possibility of working in Qld in the future. He claimed his understanding was he would be employed in WA only temporarily and that he would then have a continuing role with the company, in Qld.

District Court Judge Keen found that Ribshire engaged Mr Goldman on a casual basis only, solely for the work at Christmas Creek, and not on an ongoing basis. His Honour therefore concluded that Mr Goldman ‘usually worked’ for Ribshire in WA.

Judge Keen concluded that there was no ongoing relationship between Mr Goldman and Ribshire, nor was there was any mutual intention that Mr Goldman work in WA on a temporary basis and then work in Qld. His Honour also accepted that, whatever Mr Goldman’s intention may have been, if there was to be further work with Ribshire, a further offer of employment would have been made.

Mr Goldman also claimed that WorkCover Qld had acquiesced to Qld being the correct jurisdiction by its conduct in accepting his claim.

This highlights that disputed subjective facts – such as the intentions of parties regarding work location – can cause protracted and costly jurisdictional disputes. It is critical that employers clearly document intended work locations when engaging workers across multiple jurisdictions.

Goldman v Ribshire Pty Ltd [2015] WADC 155


Strict termination day notice requirement enforced

The District Court has emphasised the need for employers to strictly comply with section 93O of the Workers’ Compensation and Injury Management Act 1981 (WA) (Act) in giving workers notice of their termination day.

On 12 March 2014, Ms Reale lodged an election at WorkCover to pursue common law damages and then commenced proceedings against her employer, Wesfarmers Kleenheat Gas Pty Ltd (Kleenheat).

Kleenheat applied to have the proceedings dismissed on jurisdictional grounds. The issue was whether WorkCover had the power to extend the ‘termination day’ – effectively, a limitation period for lodging an election. WorkCover granted the extension on the basis that the notice had not been provided to Ms Reale within the strict 14 day ‘window’ prescribed by the Act.

The Court firstly identified the initial termination day, which requires as a starting point ascertaining the date on which a ‘claim for compensation by way of weekly payments’ is made.

When lodging her workers’ compensation claim, Ms Reale was certified fit for restricted work, which the Court found may indicate a partial incapacity but was not evidence of an entitlement to weekly payments. The Court noted the distinction between a worker lodging a claim for an injury and making a claim for weekly payments.

However, at the same time as lodging her claim, Ms Reale also completed a sick/annual leave authority in which she requested to be paid leave entitlements while she awaited a decision on liability. This persuaded the Court that, when lodging her claim form, Ms Reale was claiming weekly payments.

The Court accepted that section 93O had not been complied with as notice of her termination day had been improperly provided about three weeks before the start of the 14 day ‘window’ to provide notice. As such, the Court held that WorkCover had the power to extend the termination day and dismissed Kleenheat’s application.

This decision highlights the importance of strictly complying with the 14 day ‘window’ in giving workers notice of their termination day – otherwise, it may be extended. Given the complexities associated with identifying the termination day, early attempts to clearly identify and agree it if possible, should be made.

Reale v Wesfarmers Kleenheat Gas Pty Ltd [2016] WADC 5


Casual work found to be concurrent employment

The District Court has determined that intermittent casual employment may be deemed ‘concurrent employment’ when assessing weekly payments under the Workers’ Compensation and Injury Management Act 1981 (WA) (Act).

Ms Huntley was employed by Intellilearn Pty Ltd as an education consultant. For a year before her injury, she also worked from time to time as an agency nurse for Healthcare Australia (HA). She contended that her earnings with HA should be included in her rate of weekly payments.

Ms Huntley did not work for HA on a set roster but rather on a casual basis and her last shift was the day before her injury. She was also rostered for further shifts after the date of her injury. The arbitrator held at first instance that Ms Huntley was not in ‘employment’ with HA on the day of her injury and therefore did not take her earnings with HA into account when calculating weekly payments.

On appeal, District Court Judge Stavrianou held that the ordinary meaning of ‘employment’ included casual work.

Ms Huntley was able to prove that she was incapacitated for her pre-injury work and from earning wages from both employers. Judge Stavrianou upheld the appeal and found that Ms Huntley was employed by both Intellilearn and HA at the time of her injury.

This decision increases the scope for workers to include casual employment earnings in the rate of weekly payments. Questions will no doubt arise in future cases as to how consistent the casual work needs to be in order to be included.

Huntley v Intellilearn Pty Ltd [2016] WADC 32


Arbitration appeals: strictly no extension of time

Another District Court appeal decision has reaffirmed that there is no power to extend the time to appeal an arbitrator’s decision under the Workers’ Compensation and Injury Management Act 1981 (WA) (Act).

Section 247 of the Act provides that a party may appeal to the District Court within 28 days after the day on which the written reasons for an arbitrator’s decision are provided.

In this case, the arbitrator’s reasons were delivered on 16 June 2015 and sent by regular post to Mr Bouwman’s solicitors that day. District Court Judge Wager found that the reasons would have been received on or around 18 June 2015. The notice of appeal was lodged on 6 August 2015.

Mr Bouwman had been legally represented and at no stage did he notify the Court of a change of address. District Court Judge Wager noted that the reasons for decision had been appropriately delivered by post to his lawyers. Even though Mr Bouwman’s evidence was that he only received verbal notification of the reasons for decision on 27 July 2015 and as a result filed an appeal notice on 6 August 2015, his application was still made 46 days after the date that the reasons for decision were delivered to his solicitors.

District Court Judge Wager dismissed the application on grounds that the Court did not have jurisdiction to hear the application because it was not made within time.

This decision again highlights how critical it is that any application for leave to appeal is filed within 28 days after the day on which the written reasons for an arbitrator’s decision are given. Otherwise, appeal rights are lost and the only potential recourse may be the ‘new information’ provision in section 217A of the Act.

Bouwman v Westralian Finance Company Pty Ltd [2016] WADC 49


Schedule 2 settlement not binding until forms signed

The District Court has refused to enforce a Schedule 2 lump sum settlement in the absence of signed documentation.

A settlement agreement under Schedule 2 of the Workers’ Compensation and Injury Management Act 1981 (WA) (Act) was negotiated between James McKellar and Allianz Australia Insurance Limited (Allianz). Four days later and before signing the Schedule 2 documents, Mr Mackellar died from unrelated injuries.

Mr Mackellar’s widow, Helene, sought to enforce the settlement at the Arbitration Service. Allianz contended that Mr Mackellar had failed to make an election to seek a lump sum in respect of a permanent impairment during his lifetime, as required by section 31C of the Act.

The arbitrator dismissed the application, finding that he did not have jurisdiction to determine whether the agreement was binding and enforceable – the equitable remedy of specific performance may only be sought in the Supreme Court.

On appeal, Mrs Mackellar’s solicitors contended that the exchange of letters constituted a contract binding on the parties to join in bringing a formal contract into existence and carry it into execution: Masters v Cameron [1954] HCA 72. However, District Court Judge Scott considered that Masters did not apply as it did not concern a contract subject to compliance with statutory provisions.

Judge Scott followed Moyle v Minister for Works (1979) WAR 183 in finding that signing the Schedule 2 election was personal to the worker and not available to his personal representative after his death.

In so finding, the District Court has drawn a distinction between settlements pursuant to Schedule 2 and section 92(f), given the earlier decision in Nydegger allowed that section 92(f) agreements could still be enforceable where settlement documents were not yet formalised.

Mackellar v Asciano Limited and Subsidiary Companies [2016] WADC 56


Section 61 dispute limited to notice

The District Court has confirmed the limited scope of a hearing and the burden of proof where an employer serves a section 61 notice.

On 6 October 2015 Reginald Rintoul was served with a notice pursuant to section 61 of the Workers’ Compensation and Injury Management Act 1981 (WA) advising him that Mirrabooka/Nollamara Car Transport (employer) intended to cease his weekly payments on the basis of a medical report which indicated that his incapacity was no longer a result of the work injury.

Mr Rintoul disputed the notice. The arbitrator found that she was only required to decide whether the worker’s incapacity resulted from the work injury – the contention stated in the notice. She found that Mr Rintoul’s incapacity continued to result, at least materially, from the work injury. The arbitrator declined to determine whether Mr Rintoul had a partial capacity for work because this alternative contention was not stipulated on the notice.

On appeal, District Court Judge Schoombee found that it is a clear requirement of section 61 that the employer state whether it intends to discontinue weekly payments or reduce and to what amount (or both), and that it would be contrary to the principles of natural justice if the arbitrator could make a finding on the worker’s retained capacity to work and reduce his payments, without notice of that intention.

Judge Schoombee concluded that there is no apparent reason why the burden of proof should be any different in section 61 cases as in section 62 cases. Her Honour found that the employer is required to prove the assertions in the section 61 notice that payments should be discontinued or reduced. If the employer wishes to change the status quo and assert that the worker has regained capacity, or that the incapacity is no longer the result of the work injury, it should carry the legal burden to prove these matters and the worker would have an evidentiary burden to show that the situation had not changed or changed to a lesser degree than asserted by the employer.

This case highlights the importance of carefully drafting section 61 notices, identifying all alternative bases, and specifying the amount of any reduction sought. The onus of proof finding is controversial, given the many differences between section 61 and section 62 applications, and is ripe for future consideration.

Mirrabooka/Nollamara Car Transport v Rintoul [2016] WADC 58


Causation and reasonableness of medical expenses: legal test explained

The WA Court of Appeal has set out a clear causation test for medical and surgical treatment under the Workers’ Compensation and Injury Management Act 1981 (WA) (Act).

Mr Napier underwent cervical fusion surgery in 1998 and further injured his neck in a car accident in 1999. In 2008 he suffered a workplace neck injury for which liability was accepted and by mid-2009 he had returned to full duties. In 2012, he claimed to suffer a further workplace neck injury for which liability was denied.

Mr Napier pursued a determination of liability for the 2012 injury, total incapacity weekly payments and medical expenses including artificial disc replacement surgery. Mr Napier sought an alternative order that his incapacity and medical expenses resulted from the compensable 2008 injury.

The arbitrator found that the 2012 injury was a compensable ‘fresh’ injury and not a recurrence, aggravation or acceleration of the 2008 injury, and that Mr Napier’s incapacity resulted from the 2012 injury and not the 2008 injury. However, the arbitrator did not award the costs of surgery as he was not satisfied that the deterioration of the disc resulted from the 2012 injury.

The arbitrator’s decision was upheld on appeal so Mr Napier appealed to the Court of Appeal. Mr Napier argued that he was entitled to claim medical expenses as long as the treatment was ‘medically reasonable or appropriate’ – for example, to relieve the symptoms of a compensable injury or resulting incapacity.

Justice of Appeal Buss formulated the test as: there must be a connection between a worker’s injury and the relevant medical or surgical treatment. That is, the treatment must be to alleviate, remedy, cure or prevent the deterioration of the compensable injury, a disability wholly or partially caused by that injury, or any symptoms wholly or partially caused by that injury or disability.

Justice Buss identified from the arbitrator’s reasons that Mr Napier’s surgery was not for these purposes and accordingly dismissed the appeal.

The Court of Appeal has formulated a causation and reasonableness test for application by the Arbitration Service in the future and has provided some much needed clarity.

Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230


Res ipsa loquitur – mere occurrence of accident implies negligence

The WA Court of Appeal has unanimously rejected a claim of res ipsa loquitur (Latin for ‘the thing speaks for itself’) and an adverse inference by the respondents in failing to call a witness (Jones v Dunkel inference).

Stephen Kelly alleged that one Mr R Scanlan negligently dumped a full load from an excavator into his dump truck, causing neck and back injuries from the resultant violent shake.

Mr Kelly was employed by Ngarda Mining and Civil Pty Ltd (Ngarda) and Mr Scanlan by TSS Recruitment Pty Ltd (TSS), a labour hire company. Mr Scanlan worked under Ngarda’s control at the mine site and, under an arrangement between Ngarda and TSS, was considered a temporary employee of Ngarda.

Mr Kelly sued both Ngarda and TSS and lost at trial. He appealed the primary judge’s finding that Mr Scanlan was not negligent and that TSS was not vicariously liable for Mr Scanlan. The Court of Appeal found it was open to the primary judge to conclude that Mr Kelly had not established the circumstances of the accident and therefore failed to prove breach of duty.

As to res ipsa loquitur, the Court noted that the primary judge found that such impacts were a regular or common incident of loading on mine sites and this fact was not challenged on appeal. As this was outside the experience of lay people to make a determination on, and given that expert evidence did not establish such an occurrence could not occur without negligence, the accident could not be said to speak for itself to show negligence. The Court held that there was an additional requirement that the facts not only speak of negligence, but also point to the defendant’s negligence, which they did not.

Mr Kelly also claimed that the primary judge had failed to draw an adverse Jones v Dunkel inference (where there is an unexplained failure by a party to put evidence before the court) for failing to call Mr Scanlan. The Court noted that a written statement of Mr Scanlan did not suggest that his evidence would have benefited either party, nor was there any basis to expect that Ngarda or TSS, as opposed to Mr Kelly, would call Mr Scanlan. The Court added that Jones v Dunkel inferences do not make up for deficiencies in evidence, as Mr Kelly attempted to do.

The Court found that TSS was not vicariously liable for Mr Scanlan and vicarious liability was transferred from TSS to Ngarda. While a heavy burden of proof is required to shift vicarious liability, the authority to control and the actual control Ngarda had over Mr Scanlon was enough.

This decision illustrates the very limited application of res ipsa loquitur. Most notably, it provides a rare example of a court finding that vicarious liability has shifted from one entity to another in a ‘labour hire’ scenario, although this is again applicable in only limited circumstances, given the specific agreement that existed in this case. The Court left the interesting question of ‘dual vicarious liability’ – that is, two parties found vicariously liable – to another day.

Kelly v Bluestone Global Ltd (In Liq) [2016] WASCA 90


Occupier’s liability

Slippery spillage suit ‘speculative’

The District Court has recently provided comment on whether reasonable care was taken by an occupier of residential premises when a resident slipped and fell on a stain in the common area.

Ms Robinson (aged 67) was the owner and resident of a strata titled unit in Reflections Waterfront Apartments. On 18 February 2012, she slipped and fell on the tiled floor of the common area and injured her right shoulder.

Ms Robinson alleged that she slipped on a spilled stain and that Reflections owed her a duty of care to take reasonable precautionary steps by inspecting and cleaning the common area.

No evidence was brought of the composition of the stain, whether it was slippery or how it came to be on the walkway tiles District Court Judge Stone held that it was unlikely that the stain caused her foot to slip and agreed with Reflections that the cause of the fall was ‘purely speculative’.

District Court Judge Stone considered the system of cleaning the common area to be appropriate having regard to:

  • the nature of the premises
  • the ability of the person entering the premises to appreciate the danger
  • the burden on the defendant of eliminating the danger or protecting people entering the premises from the danger compared to the risk of the danger to them.

Judge Stone was not satisfied that Ms Robinson slipped and fell on something on the tiles or that Reflections caused or materially contributed to her fall and injury. On this basis her claim was dismissed. In case the finding of liability was wrong, damages were assessed at $40,000.

This case illustrates that a failure to employ a system of periodic inspection and cleaning will not of itself amount to negligence. It must also be established that a system of periodic inspection and cleaning would have minimised or avoided the risk of injury.

This decision is pending an appeal.

Robinson v Owners of Reflections Waterfront Apartments West Tower Strata Plan 58085 [2016] WADC 22


Curious collapsing chairs case: recovery awarded

A WA government employer has been awarded a full workers’ compensation recovery in a case involving a worker who was sitting on a wooden chair when it unexpectedly collapsed.

Ms Pisan suffered a serious knee injury in the accident, which occurred at a recreation centre owned and operated by the Shire of Northam. Ms Pisan was supervising schoolchildren attending a youth event, in the course of her employment with the Education Department.

The Shire had purchased 270 ‘Martin’ chairs from Ikea for the centre. The chairs were assembled by Shire employees, following Ikea’s written instructions. A former Shire employee testified that she was aware of three other incidents of Martin chairs collapsing and a current employee testified that around 12 of the 270 chairs were previously disposed of due to similar failings.

The three victims of the collapsing chairs (including one former State MP) testified about their experiences. The Shire’s own expert structural engineer testified that the chairs were ill-designed and ill-suited for use on hard, polished surfaces.

The Shire contended that Ms Pisan’s accident was not reasonably foreseeable and that it was not reasonable to require it to replace all Martin chairs.

District Court Judge McCann accepted that the number of chair failures was a small proportion of the whole, but considered that “there was clearly a single endemic problem, so the number was significant.” His Honour found that, given the number and nature of the collapses, the Shire should reasonably have suspected an endemic problem and therefore the risk of a Martin chair spontaneously collapsing was reasonably foreseeable to the Shire for some time prior to the accident.

Judge McCann further held that the risk of a patron being seriously injured outweighed the burden on the Shire in eliminating the risk and that Ms Pisan’s accident would not have occurred if the Shire had discharged its duty of care. The Court therefore awarded an indemnity.

This case illustrates pure negligence concepts in the context of a workers’ compensation recovery claim. Applying the ‘calculus of negligence’, the judge identified actual knowledge of prior similar incidents and the balancing of cost and risk, in finding the occupier liable.

Minister for Education v Shire of Northam [2016] WADC 42


Rare ‘no duty’ finding achieved by occupier

The District Court has examined the scope and content of a contract for services in assessing whether a contractual obligation existed and has found that an injured plaintiff was not owed a duty of care.

Mr Strahan suffered a right knee injury while acting as a vehicle pilot for a load being transported by Tenista Pty Ltd. The convoy pulled into a truck bay before the Willare River Bridge to raise the height of the load (stooling) so that it did not interfere with the bridge’s safety barriers. Mr Strahan alleged that, while assisting the drivers with the stooling process, he stepped off the rear of a trailer onto a metal stool and the stool gave way, causing him to fall.

Mr Strahan alleged against Tenista a breach of contract, contending that he was contractually obliged to assist with stooling. His also claimed that the truck and trailers were ‘premises’ under the Occupiers’ Liability Act 1985 and that Tenista was required to take reasonable care to ensure he did not suffer injury caused by the state of the premises, while his statutory claim relied on the truck and trailer being a ‘workplace’ under the Occupational Safety and Health Act 1984 (WA).

Tenista denied there was any contractual obligation for Mr Strahan to assist with stooling and denied that it owed him any duty of care.

District Court Judge Stavrianou identified many inconsistencies in evidence given by Mr Strahan and Tenista’s two drivers. His Honour noted that a witness not recalling an event does not establish that it did or did not occur.

Judge Stavrianou considered reasonable foreseeability and the salient features of the relationship between Mr Strahan and Tenista, following the High Court’s approach in Kuhl v Zurich Financial Services Australia Ltd. His Honour found that there was no contractual requirement for Mr Strahan to assist with the stooling process, nor had there been requests, instructions or directions for him to assist. Therefore, the facts did not support the imposition of a duty of care

Finally, without any witnesses to the incident, the Court held that Mr Strahan had not proven that the injury was sustained in the manner he alleged. Having found that the statutory breach pleadings added nothing to the negligence claim, Mr Strahan’s claim was dismissed.

This case highlights that a duty of care will not be found simply due to a party’s involvement in an accident. In particular, judges will closely examine contractual requirements in order to analyse whether a duty is established.

Strahan v Tenista Pty Ltd [2016] WADC 76


Family accident not covered by home and contents insurance

The WA Court of Appeal has determined that the father and brother of a 10 year old girl who was seriously injured were not entitled to coverage under their home and contents policy.

Georgia Inglis was run over by a ride-on lawnmower at the home of Daniel and Elaine Sweeney. The lawnmower was driven by the Sweeneys’ 11 year old son, Stephen. It was owned by Georgia’s father, Stuart Inglis. It was alleged that the lawnmower was driven to the Sweeney residence by Georgia’s brother, James (aged 12).

Georgia sued Daniel, Elaine and Stephen Sweeney. They in turn issued third party proceedings against Georgia’s father Stuart and brother James. Stuart and his wife Linda were insured under an Allianz home and contents policy. At the time of the accident, both Georgia and James lived permanently with their parents. Allianz denied indemnity to Stuart and Linda.

The case concerned an exclusion in the policy for Injury to any person who normally lives with the insured. At trial, Stuart and James successfully invoked section 54 of the Insurance Contracts Act 1984 (Cth) which applies where an insurer may, under the policy, refuse to pay a claim by reason of some act of the insured or of some other person. Essentially, in those circumstances (subject to other criterion that are irrelevant here), the insurer may not refuse to pay the claim but may have its liability reduced on account of the prejudice resulting from the act in question.

The Court was required to determine whether the expression ‘a person who normally lives with you’ contained or constituted an ‘act’. The Court unanimously found that an ‘act’ means something done or being done by a person. It is different from a state of affairs or the result of an act. The fact that a ‘person normally lives with’ an insured does not constitute an ‘act’.

The Court noted that whether a person ‘normally lives with’ an insured is a question of fact to be assessed in light of a person’s conduct over an extended period. However, whatever finding is made as to whether someone ‘normally lives with’ another person, this is not an act but more properly a description of a relationship or state of affairs.

The Court’s decision is a common sense interpretation of ‘act’ for the purposes of section 54 and reiterates the importance of the interpretation and application of terminology within insurance policies. When refusing to indemnify an insured, the insurer must consider whether the act or omission in question is ‘a state of affairs’ or indeed an ‘act’ for the purpose of section 54(1).

Allianz Australia Insurance Ltd v Inglis [2016] WASCA 25


Trip on protruding paver: local Council not liable

The WA Court of Appeal has examined the duty of care owed by local governments to pedestrians and has identified possible limitations to the ‘no actual knowledge’ defence in footpath cases.

Wendy Rankilor tripped and fell over a protruding paver on a South Perth footpath. She claimed that the City of South Perth negligently failed to ensure that the footpath was even and not raised.

The primary judge found that the City owed a common law duty of care to keep the footpath reasonably safe for ordinary use, but had not breached its duty. The Court judge further found that, even if the City had breached its duty, the City would not be liable due to the ‘no actual knowledge’ defence in section 5Z of the Civil Liability Act 2002 (WA) (CLA).

Section 5Z provides that a road authority (including a local government) is not liable for harm arising from a failure to carry out road work unless at the time of the failure the authority had actual knowledge of the particular risk that caused the harm. There was no evidence that the City had actual knowledge of the particular risk posed by the paver that caused the injury.

In a joint decision, Justices of Appeal Buss, Newnes and Murphy found that it was plainly open to the primary judge to conclude that the City was not liable, as there was no evidence of anyone previously tripping on the paver, the area of paving had been inspected some 12 to 14 months prior, and there was no evidence of another practicable system for the City inspecting and maintaining the footpath.

While it was not necessary for the Court to consider the section 5Z defence, the question of whether ‘road’ under section 5Z included a footpath was discussed. The Court referred to a New South Wales decision in which this question was considered (Botany Bay City Council v Latham [2013] NSWCA 363) albeit with a different definition of ‘road’.

The question of whether the section 5Z defence extends to footpaths is ripe for determination by a Western Australian court. This depends on the interpretation the definition of road in WA legislation. A finding that it does not extend to footpaths would considerably narrow the application of the defence.

Rankilor v City of South Perth [2016] WASCA 29


Property liability

Unreliable witnesses and (unproven) hindsight leads to successful recovery

The Supreme Court of Western Australia has dismissed the appeal of Daynite Towing (WA) Pty Ltd (Daynite Towing) against a decision of the District Court to uphold the claim for damages by Regrowth Karri Pty Ltd (Regrowth Karri).

On 28 September 2012, a tourist coach owned by Regrowth Karri was destroyed by fire while being towed between Mullewa and Perth by Daynite Towing. Experts considered that the fire was caused by friction in the coach’s brakes resulting from a loss of air supply, which was shared between the coach and the tow truck. Prior to towing, the tow truck operator identified and fixed five or six leaks in the coach’s air system.

The uncontested evidence was that the tow truck driver could have prevented the fire through undertaking a simple procedure known as ‘caging’ and that the tow truck driver drove at excessive speeds, which contributed to the speed of the development of the friction in the brakes. The tow truck driver stopped to check the coach 3 kilometres and 80 kilometres into the tow before the fire commenced approximately 307 kilometres into the tow.

Daynite Towing appealed on a number of grounds, most notably that the primary judge engaged in a hindsight assessment of the facts in determining that a prudent tow truck driver would have ‘caged’ the brakes prior to towing. In President McClure’s leading judgment, Her Honour determined that there was no evidence to suggest that District Court Judge Stavrianou had used hindsight.

Regrowth Karri also asserted that the District Court erred in determining that the tow truck driver failed to detect changes in the pressure gauges which would have alerted the driver to the loss of air pressure. Her Honour determined that this finding was open on the evidence and noted that the evidence of the tow truck driver was directed at practice in general rather than the specific events on the date of the fire.

President McClure also dismissed Regrowth Karri’s other grounds of appeal, concluding that each of the findings was open on the evidence. President McClure confirmed that the fire would not have occurred but for the negligence of Daynite Towing.

This case illustrates the importance of encouraging employees to undertake proper due diligence and care in undertaking duties in relation to property in its possession to ensure the property will not be at risk of harm. In particular, the importance of compliance with strict policies and procedures which are implemented in order to minimise risk of harm or damage to property.

Daynite Towing Service (WA) Pty Ltd v Regrowth Karri Pty Ltd [2016] WASCA 55


Manufacturer’s liability

Limitations on appeals: finding of fact must be ‘glaringly improbable’ to be overturned

The High Court has affirmed the circumstances where an appellate court can interfere with a primary judge’s finding of fact, while also analysing the principles of causation.

Graham McDermott sustained serious injuries while a passenger in a helicopter crash. He brought damages claims against Robinson Helicopter Company Incorporated (Robinson) in negligence and under the Trade Practices Act 1974 (Cth), alleging deficiencies in Robinson’s helicopter manual.

The part of the helicopter that caused the accident and other related parts had been assembled and incorrectly re-assembled as part of regular inspections which occurred every 100 hours of flight time. One of the four bolts securing the part was not adequately tightened.

Robinson did not cause the defect and it was not known who did. The helicopter was inspected twice before the accident and the defect was not detected. Mr McDermott claimed that the manual contained insufficient instruction to facilitate detection of the defect.

The manual required a torque stripe to be applied to each of the bolts once tightened and, if that stripe was missing, damaged or incomplete, steps needed to be taken to determine whether the bolt was correctly tightened.

The primary judge dismissed the claim, finding the manual was adequate. However, the Queensland Court of Appeal rejected the primary judge’s findings that it was likely that there was no torque stripe painted on the bolt. The Court of Appeal also found that Robinson breached its duty as the manual did not specifically direct the use of a torque wrench or spanner to tighten the bolts, irrespective of the presence of a torque stripe, during inspections.

The High Court unanimously found that the Court of Appeal incorrectly interfered with the trial judge’s finding of fact that no torque stripe was painted on the bolt, as this finding was not ‘glaringly improbable’. They further determined that it should have been clear to the engineers undertaking the inspection what was required and not due to a deficiency in the manual.

The Court further found that, had there been a breach, Mr McDermott would still have failed to establish causation. They found that the possibility that the stripe had been correctly applied was not any more likely than other possibilities. Further, there was no evidence that a wrench or spanner was any more likely to be adhered to than the manual’s procedure involving torque stripes.

This case highlights the difficulties associated with attempting to overturn findings of fact – appeal courts may only intervene where the facts are ‘incontrovertible’, the testimony is ‘uncontested’, or where the findings are ‘glaringly improbable’ or ‘contrary to compelling inferences’. Further, the High Court has again emphasised that causation findings require clear evidence, not speculative inferences.

Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22


Motor vehicle accidents

Court discusses causation test for negligence

The plaintiff, the driver of a four-wheel drive, was about to execute a left-hand turn when he was hit from behind by a Transperth bus. The force of the impact pushed the plaintiff’s vehicle off the road, over bollards and into a shop.

The plaintiff claimed to have suffered multiple soft tissue injuries with associated psychiatric injury (post-traumatic stress disorder and depression), headaches and sleep disturbance. The bus driver admitted liability but contended that the plaintiff failed to mitigate his loss and that his injuries, loss and damage were caused or materially contributed to by pre-existing injuries.

The plaintiff had various prior injuries, including a soft tissue neck injury in 2001, a right shoulder injury in 2006 and a lower back injury in 2007. District Court Judge Derrick found that numerous aspects of the plaintiff’s evidence and the inconsistent histories provided to the medical practitioners reflected adversely on his credibility and so approached his evidence with caution.

In considering causation, his Honour found that the accident caused the plaintiff to suffer soft tissue injuries to his cervical and lumbar spine and associated symptoms of pain and headaches which had substantially resolved by mid 2012. However, Judge Derrick was not satisfied that the accident was a necessary condition of his left shoulder injury, depression or post-traumatic stress disorder – applying the ‘but for’ test in section 5C of the Civil Liability Act 2002 (WA).

The plaintiff’s depression aggravated his minor symptoms in mid 2012. The Court found that causation was established because the accident materially contributed to the harm – that is, if the accident had not occurred, he would not have been suffering from the minor symptoms. A novus actus interveniens – that is, an intervening act breaking the chain of causation – had not occurred.

This case neatly illustrates basic causation principles such as the ‘but for’ test and novus actus interveniens, highlighting that it is not necessary for a plaintiff to prove that the defendant’s negligence was the sole or even dominant cause of the harm, but rather it is sufficient if the negligence materially contributed to the harm.

CSS v KD [2016] WADC 82


Fatally injured intoxicated pedestrian held two thirds contributory negligent

The WA Court of Appeal has unanimously upheld a District Court judgment apportioning two thirds contributory negligence to a deceased pedestrian.

The pedestrian, Allan O’Connor, was fatally struck by a bus driven by Wallace MacGregor in the early hours of the morning. District Court Judge Braddock found that Mr Macgregor was clearly negligent in failing to see Mr O’Connor and take steps to avoid the collision, but he otherwise drove in an exemplary manner.

Her Honour considered that Mr O’Connor was ‘significantly more to blame’ and therefore apportioned liability two thirds to Mr O’Connor, finding him reckless, particularly given he was wearing a black tuxedo and was heavily intoxicated. There was also evidence that he had been walking on the road earlier that evening and was walking with his back to oncoming traffic.

Mr O’Connor’s dependants appealed the finding of him being two thirds negligent and contended that the apportionment between driver and pedestrian ‘will always be in favour of the pedestrian because a motor vehicle has the capacity to do more damage’, relying on Nominal Defendant v Ross [2014] NSWCA 212.

Justice of Appeal Buss rejected this contention, relying on a plethora of case law – in particular, Allianz Australia Insurance Ltd v Swainson [2011] QCA 136, where the court held that a driver of a car will ordinarily bear the larger share of responsibility all things being equal. However, in this case they were not.

On the basis of Mr O’Connor’s conduct, which was not in dispute, the Court found that the contributory negligence apportionment was reasonable.

This case confirms that a driver of a motor vehicle will not always be found more liable than a pedestrian in an accident and that the conduct of the parties will always be a mitigating factor to apportioning liability.

O’Connor v Insurance Commission of Western Australia [2016] WASCA 95


Medical malpractice

Health professional not negligent if there is more than one treatment option

District Court Judge Sweeney has considered the ‘widely accepted practice’ provisions in section 5PB of the Civil Liability Act 2002 (WA) (CLA).

Mr Wright was admitted to Fremantle Hospital following a car accident. He suffered serious injuries, including a fractured heel.

The heel was treated conservatively. Some months later, he continued to experience heel pain and was referred to a private orthopaedic surgeon, who recommended surgical repair of the heel bone.

Mr Wright alleged that the hospital was negligent in failing to arrange imaging of the heel and ultimately surgery. He claimed that osteoarthritic changes to his heel bone would not have occurred had surgery been performed earlier.

The hospital’s expert testified that there was no consensus amongst orthopaedic surgeons – indeed, there was controversy – regarding whether surgical intervention or conservative management produces better outcomes for patients with heel fractures, which was supported by the medical literature. District Court Judge Sweeney accepted that conservative treatment and surgery both accorded with widely accepted practice at the time of Mr Wright’s admission.

Her Honour held that where two or more schools of thought exist in the profession, or where two or more treatment options are available to the patient when competing factors are weighed against each other as part of the exercise of clinical judgement, then each option is capable of being widely accepted even though individual members of the profession might elect to pursue one treatment option over the other.

Judge Sweeney noted that section 5PB(4) of the CLA provides an avenue for the Court to apply its own standards of reasonableness, although such a finding will be an exceptional case – where a qualified medical practitioner acts in accordance with widely accepted practice and yet acts in a manner that is so unreasonable that no reasonable health professional in his position could have so acted.

Her Honour did find that the hospital should have arranged a CT scan before discharging the Mr Wright, which was consistent with both sides’ expert evidence. However, Mr Wright failed to establish causation, as a CT was unlikely to have shown deformity of such a degree as to require surgery. Further, by the time the results of any CT scan would likely have been known, the optimal time frame to correct the deformity had passed and Mr Wright would still have suffered the same harm that ultimately occurred.

Judge Sweeney’s decision illustrates that, while the Bolam test has largely been restored through the CLA, it has been slightly modified in that there exists a very narrow window for plaintiffs to invite the court to apply its own subjective test of reasonableness in the face of expert evidence confirming that the health professional’s acts or omissions accorded with widely accepted practice at the time of the treatment. It is anticipated that this would only occur in the most exceptional of cases, which even Her Honour did not hypothesise on.

Wright v Minister for Health [2016] WADC 86


‘Widely accepted practice’ provision: standard of care, not statutory defence

A WA District Court judge has considered whether the ‘widely accepted practice’ provisions present a statutory defence for health professionals, or form part of the plaintiff’s burden of proof, while also providing some guidance on causation principles where the ‘but for’ test is not met.

Roy Martin, then aged 60, was treated with intravenous antibiotics while an in-patient at Armadale-Kelmscott Memorial District Hospital for a septic condition in his lower back. Following the insertion of the catheters, Mr Martin complained of numbness, tingling and loss of sensation in his right arm. Hospital staff made a working diagnosis of carpal tunnel syndrome.

The septic condition settled and Mr Martin was discharged. However, he continued to experience right arm symptoms. Radiological investigations revealed a large haematoma compressing and damaging his right median nerve. Decompression surgery was performed.

Mr Martin sued the hospital, alleging that radiological investigations should have been undertaken, which he claimed would have led to prompter surgery. He alleged that the delay caused prolonged nerve compression, resulting in permanent disability.

Section 5PB of the Civil Liability Act 2002 (WA) (CLA) requires analysis of competent professional practice as accepted by the defendant’s peers (consistent with the Bolam principle). Mr Martin relied upon two decisions of the NSW Court of Appeal – Dobler v Halverson (2007) 70 NSWLR 151 and McKenna v Hunter & New England Local Health Districts [2013] NSWCA 476 – that the NSW equivalent provision provides a defence for the defendant.

Mr Martin therefore contended that the hospital bore the onus of establishing that his treatment was consistent with widely accepted practice. However, District Court Judge Bowden found that it is clear from section 5PB(6) (which does not appear in the NSW legislation) that the patient bears the onus of proving, on the balance of probabilities, that:

  • the acts or omissions of the health professionals were not widely accepted by their peers as competent professional practice; or
  • if they were, the act or omission was, in the circumstances, so unreasonable that no reasonable health professionals in their position could have so acted or omitted to do the act complained of.

Ultimately, His Honour found that the hospital had breached its duty of care by failing to perform radiological investigations, given his consistent reporting of symptoms and that his presenting septic condition had largely settled before discharge. Had an ultrasound been performed, he would have undergone surgery while still an inpatient.

Dealing then with causation, His Honour preferred Mr Martin’s expert vascular surgeon’s evidence that he would have had no permanent disability had that occurred. Therefore, the ‘but for’ test – factual causation – had been established, as required by section 5C(1)(a) of the CLA.

His Honour also considered the alternative position, if he was wrong in finding that the ‘but for’ test had been met. All the experts agreed that Mr Martin would likely have had a better outcome, but the hospital’s experts were unable to specify to what degree (a ‘gap’ in the causation evidence). Applying section 5C(2) of the CLA, His Honour found that there was no reason why the hospital should not have responsibility for the harm, having assumed responsibility for Mr Martin’s medical care, and there was no reason why Mr Martin’s harm should be left to lie with him. While on the hospital’s evidence there was a causation ‘gap’, the evidence nonetheless established that the breach ‘was part of a set of conditions necessary to the occurrence of that harm’.

Judge Bowden’s decision departs from persuasive NSW authorities that the ‘widely accepted practice’ provisions gives rise to a statutory defence, placing the burden on health professionals of proving that their practice accords with the widely accepted practice of their peers. Plaintiff lawyers may well continue to contend that the provisions are merely a defence, in which case the WA Court of Appeal will no doubt be required to determine the matter. While the causation ‘gap’ findings were obiter, it is notable that His Honour applied a ‘value judgment’ in favour of Mr Martin because even the hospital’s expert evidence showed that the negligence had increased the risk of the harm occurring.

Roy Charles Martin v Minister for Health [2016] WADC 15


Fast Facts

Amendment to definition of industrial award

A new regulation has been effected which expands the definition of ‘industrial award’ in the Workers’ Compensation and Injury Management Act 1981 (WA) (Act). WorkCover’s website states that the amendment ‘is consistent with common practice and does not have any material impact on payments made to workers’. It is beneficial that the regulations have been brought into line with ‘common practice’.

The regulation, which came into effect on 16 April 2016, relevantly stipulates:

3A. Instruments under Commonwealth laws prescribed for definition of industrial award in Act

For the purposes of paragraph (d) of the definition of industrial award in section 5(1) of the Act, the following instruments are prescribed —

a. a fair work instrument as defined in the Fair Work Act 2009 (Commonwealth) section 12;

b. an award-based transitional instrument as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Commonwealth) Schedule 2 item 2 that continues in existence under Schedule 3 Part 2 of that Act.

The regulation confirms that workers covered by Commonwealth instruments are ‘award’ workers for the purpose of calculating weekly compensation payments. This is consistent with common practice and does not have any practical impact on the calculation of weekly payments.


Variations in Prescribed Amount and other payments under the Workers’ Compensation and Injury Management Act 1981 (WA)

Maximum payments effective 1 July 2016
Maximum payment: $221,891.00
Weekly payment: $2,666.80
Medical and hospital allowances: $66,567.00
Rehabilitation expenses: $15,532.00
Notional Residual Entitlement Amount: $304,185.00
Child’s allowance: $58.10
Funeral expenses: $9,714.00
Capped common law damages [15%-24% whole of person impairment]: $465,974.00
Wheelchair and similar appliance: $11,579.00
Board and lodging per day: $149.00
Meals and lodging per day: $116.00
Vehicle running expenses per kilometre: $0.46
Specialised retraining program: $166,418.00

WorkCover issues new consultation directive for interlocutory applications

WorkCover WA has issued a Practice Note advising of the expected standard of consultation for interlocutory applications effective from 14 March 2016. The Practice Note echoes Chief Justice Martin’s well-known decision in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281, in which it was held that oral conferral must take place if written conferral has been unproductive.

  • Consultation must be oral, ideally in person but at least by telephone. Notice of an intention to make an interlocutory application or an exchange of correspondence will not amount to consultation. While correspondence may be part of the consultation process, it can only be relied upon if oral consultation is not feasible, in which case exceptional circumstances will need to be identified justifying an interlocutory application being lodged without consultation.
  • When completing Section C of the Interlocutory Application form, details must be provided such as who took part in the consultation, when and how it took place, the issues canvassed and the outcome of the consultation. Broad statements that consultation has occurred will not suffice.
  • Parties should always consult about whether the matter can be determined on the papers or an oral hearing is required. If an oral hearing is required, a joint list of unavailable dates should be provided to the Arbitration Service with the interlocutory application.
  • A failure to properly consult, identify the outcome of consultation, or justify why the requirement to consult ought to be waived, may result in the interlocutory application being rejected or a costs order being made against the parties or lawyers at fault.
  • A party served with an interlocutory application must lodge and serve a notice consenting to or opposing the application no later than 2 working days prior to the interlocutory hearing (if opposed, also state the grounds on which it is opposed). Failure to do so may result in the application being determined as if that party did not oppose any part of it or an adverse costs order being made.
  • When filing a Memorandum of Consent Order, any explanation of the reasons for the orders sought should be contained in a covering letter to the consent orders, not in the orders themselves. A set of Standard Orders is on the WorkCover website to assist.

Damages Assessment Summary Table

The link below provides a table with a brief summary of the cases delivered in the 2015/2016 financial year comparing the damages that were assessed by the District Court of Western Australia, the Supreme Court of Western Australia Court of Appeal, and the High Court of Australia.

Brief information about the plaintiff and their injury is provided, together with an overview of the head of damages that were assessed in each case.

Damages Assessment Summary Table


Contact

Tony has been the Hall & Wilcox Managing Partner since 2007. He is well recognised in the legal sector and has led the firm through a period of substantial growth and success.

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'"Stand out" Rachael Arnold is recommended for public and product liability claims.' – The Legal 500 Asia Pacific 2017

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Jane has been a practising solicitor for over 20 years specialising in Real Estate law with a focus on leasing in the commercial, retail, industrial, education and government sectors in all Australian jurisdictions...

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Alison has close to 18 years’ experience in a wide-ranging employment practice, advising private sector and public sector clients on all aspects of employment, industrial relations and human resources law, and work health and safety law...

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Natalie has close to 20 years’ experience in property, planning and environment law and has been recognised as a leading Australian lawyer in this area in Doyle's Guide to the Australian Legal Profession...

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In the corporate space, Jacqui regularly advises and assists client with mergers and acquisitions, corporate structuring, corporate compliance and governance, capital raisings and managed investment schemes.

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Paul has over 20 years' experience in insurance and commercial litigation. In particular his practice focuses on personal injury and property liability claims under common law and statutory schemes as well as marine and transport industry litigation.

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Anthony is a highly regarded tax practitioner with over 20 years’ experience. He has particular expertise in taxation planning and structuring for corporate clients, including advising on capital raisings, business structuring, mergers and acquisitions, and disputes with Federal and state taxation authorities.

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Angela has significant experience in workers’ compensation, product liability and public liability matters...

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Chris Brown is a commercial lawyer with 20 plus years’ experience in corporate transactions and advice.

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Fay has acted for employers for over 17 years across a range of industries including professional services, recruitment, finance, entertainment, FMCG & general manufacturing, sport, health, aged care, community services and local councils focused always on the purpose and imperatives of the organisations she is servicing.

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Liam is an accomplished and determined litigator with an excellent eye for detail and an exceptional track record in obtaining successful outcomes for his insurer clients.

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Drew has over 20 years’ experience as an insurance and commercial litigation lawyer. His area of focus has been the defence of professional negligence claims, directors' and officers' claims and medical malpractice.

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Eugene specialises in capital raising, funds management, financial services licensing and anti-money laundering law.

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Deborah has extensive experience across a broad range of commercial transactions, including mergers and acquisitions, equity capital markets and other corporate transactions, equity investments, shareholders and joint venture arrangements, management equity arrangements, ASX listed company advice, and a wide variety of commercial arrangements.

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With over 25 years of corporate, commercial and regulatory experience, Alison has specialised in advising clients in the health, aged care, disability, life sciences and community sectors...

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Anastasia’s practice focuses on personal injury litigation management and administrative law. Anastasia focuses on achieving quality outcomes for her clients in worker’s compensation matters, including statutory benefits and common law claims under the Accident Compensation Act 1985 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

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Matthew Curll is one of the top ‘go-to’ people for Australian insurance law matters – both coverage and defence...

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James has experience in a broad range of commercial and intellectual property matters, including intellectual property commercialisation, agreements and licensing, trade mark registrability and infringement issues.

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Aaron has extensive employment and industrial relations law experience working with clients across a range of industries.

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Mark specialises in the construction, energy and infrastructure sectors...

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Maurice has more than 25 years’ experience delivering legal services for clients in both the private and public sector...

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Graydon acts on behalf of a number of national and overseas clients on large and complex commercial litigation matters and advises on all aspects of dispute resolution...

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Stephanie has over 15 years' experience in representing employers, insurers and self-insured corporations in the management and defence of a range of claims including intentional torts, property damage, pure economic loss and statutory classes of insurance...

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Mark’s practice encompasses both litigious and non-litigious applications of employment and industrial relations law...

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Maree acts for and advises insurers, employers and self-insurers and regularly appears in the District Court and at WorkCover WA...

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Ana’s practice focuses on the litigation of common law and statutory benefits claims brought pursuant to Victorian workers’ compensation legislation...

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Grant has more than 25 years' experience advising on catastrophic and major claims in the areas of CTP and general liability, which often involve complex liability, medical, causation and quantum issues...

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Heather advises on all regulatory, compliance, investment, tax and contractual issues, as well as acting in connection with disputes, regulator actions, product development, fund mergers and restructurings, and other transactions...

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Kylie is a senior practitioner with extensive experience in advising both government and non-government clients across all areas of employment, workplace relations, discrimination and health and safety law...

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Ben has a range of experience in intellectual property, technology, and commercial matters...

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Frank advises his clients on direct taxes, international structuring and taxation, business transactions, corporate restructuring, taxation disputes and the not-for-profit sector...

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Kathryn specialises in resolving disputes, and works collaboratively with her clients to provide the legal and strategic advice that best achieves their preferred outcome...

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John has strong technical expertise in the property funds sector, having advised on real estate portfolio and corporate acquisitions, transactional activity for wholesale and retail unlisted funds and related regulatory, governance and compliance matters.

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Mark has almost 20 years' experience acting for Australian and overseas financial institutions and borrowers in a broad range of finance transactions...

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Oliver is a corporate partner, whose practice focuses on mergers & acquisitions, corporate advisory, divestments, foreign investments and start-up capital raising.

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Zoe is a specialist insurance lawyer who manages complex and varied matters for a number of leading corporate insurers and Lloyd's of London syndicates.

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Wayne is a leading litigation and insolvency expert, with over 20 years' experience, specialising in large and complex commercial disputes in all jurisdictions, including commercial arbitrations.

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Nathan is an experienced insurance litigator with over 18 years' experience advising insurers on workers compensation, CTP and liability claims.

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Terry has over 25 years' insurance litigation experience, with his past 20 years focused predominantly on advising underwriters and self-insurers in the defence of damages claims for personal injuries, property damage and financial loss.

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Stephen is a well-respected commercial litigation lawyer with almost 30 years’ experience. His area of specialisation is in corporate and commercial dispute resolution, with a particular focus on complex debt, consumer law, contract, corporations law, equity, real property and regulatory investigations.

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Stan has been providing legal services to Local Government in NSW since 1996 and practices primarily in the areas of Environment, Local Government and Planning Law, and is a leading trusted adviser to Local Government.

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Adrian has been involved in litigation across a wide range of matters, including corporate and personal insolvency, banking and finance litigation, property and contractual disputes.

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Anne is a leading superannuation and financial services lawyer with deep knowledge and understanding of the superannuation and financial services industry...

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Gavin’s practice focuses on the specialist area of statutory recovery for worker’s compensation claims brought pursuant to the Accident Compensation Act 1985 (Vic) and Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)...

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Joe has more than 23 years' experience advising insurers on large and complex claims under CTP and statutory classes of insurance...

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Matt has vast experience and expertise in public and product liability, professional indemnity, property, including recoveries, class actions and coverage disputes, and fraud...

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Tom has extensive experience in acting for high net wealth families, private and public corporations and corporate trustees...

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Jason’s practice focuses on personal injury litigation management and administrative law.

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Liz’s practice focuses on common law and statutory benefits claims and issues under the Accident Compensation Act 1985 (Vic) and Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)...

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With over ten years' of experience, William helps clients to work through their succession planning goals and issues...

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Simon is a highly experienced litigator, having practiced for over 25 years in the CTP, workers compensation, recovery and liability jurisdictions.

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James has a broad range of both corporate and general commercial experience, particularly in the areas of equity capital markets, corporate advice, and public and private M&A...

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Andrew’s practice includes workers compensation, work injury damages/common law, s151Z recoveries, builders warranty claims, workplace law and alternative dispute resolution.

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Peter is the section leader of the firm's Tax team. Peter has joined Hall & Wilcox in 2016 after nearly 30 years with KPMG where he was a Senior Tax Partner.

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Matthew has over 18 years experience in insurance litigation and specialises in defending state statutory class and common law claims arising in the challenging Australian Capital Territory jurisdiction...

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Harry has represented a number of listed public companies, large private companies and government organisations...

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Andrew provides advice on the application of a wide range of taxation.

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Paul is an experienced energy and resources lawyer, who specialises in the development of energy projects and acquisitions, energy trading and regulation, with a particular focus on renewable energy.

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John advises principals in relation to the appropriate joint venture and development arrangements and regarding the appropriate delivery mechanism for construction projects.

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Rory has over 10 years’ experience in planning and environmental law and was recognised in 2016 as a “Rising Star” in Planning and Environment, and again in 2018 as a Recommended Town Planning & Development Lawyer in the Doyle’s Guide to the Australian Legal Profession.

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Leigh has significant experience and expertise in general insurance litigation acting for most major Australian insurers as well as a number of English insurers and underwriters.

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Michael’s practice focuses on tax disputes, capital gains tax, business sales and acquisitions and restructuring...

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Ed’s practice covers private mergers and acquisitions, family business and private equity.

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Mark specialises in corporate insolvency matters, commercial litigation and corporations law disputes, intellectual property and copyright litigation, and financial services disputes including securities enforcement...

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Katrina practises principally in the areas of commercial law and property law and development.

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Martin practices commercial law with extensive experience in contracts and commercial litigation. Martin focuses on corporate, commercial, regulatory and private clients, with particular expertise in the sports and media sectors.

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Karl advises his clients in adverse action claims at the Fair Work Commission, implementing and negotiating enterprise agreements, unfair dismissal claims, discrimination claims and contractual disputes.

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Joel is an experienced and well-rounded insurance lawyer, who is always accessible to his clients and delivers prompt, pragmatic and comprehensive analysis and advice...

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Nick has 19 years’ experience acting for Australian and international financiers and borrowers in corporate finance, acquisition finance, real estate finance and general finance across a range of sectors including financial services, property and  technology.

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Rhett is the National Insurance Practice Head and is responsible for the driving and coordinating the strategy for the firm’s national insurance practice.

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Matthew joined Hall & Wilcox on 1 July 2017, after almost 30 years at Harris Wheeler, most recently as managing partner of the firm and supervising partner of the firm’s Commercial practice.

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Kelli has extensive experience in insurance, product liability, public liability and workers’ compensation having acted for more than 30 years on behalf of insurers (both domestic and international), corporations, government bodies and instrumentalities.

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Andrew practices in personal injury litigation on behalf of self insurers, employers, and WorkSafe Victoria and its agents, managing claims brought under the Accident Compensation Act 1985 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

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Daniel is an experienced insurance lawyer with close to 20 years advising clients on insurance litigation...

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Ilona has more than 15 years’ experience with her practice focusing on both statutory and common law claims across both Victorian and Tasmanian workcover legislation

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Nicholas is a highly experienced lawyer who has concentrated on insurance law, particularly claims under the NSW statutory classes of insurance, for more than 20 years...

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Joanna has extensive experience advising and representing employers, self-insurers, NSW workers' compensation managed fund scheme agents, treasury managed fund agents and the Workers' Compensation Nominal Insurer (icare).

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Jacob is a member of Hall & Wilcox’s commercial dispute resolution team, practising predominantly in general commercial litigation.

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Adrian’s financial services law practice covers superannuation, managed funds, insurance, and financial advice...

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Ahranee advises insurers and corporates in the defence of public and product liability claims, both personal injury and property damage, as well as policy advice...

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Anton practices in all areas of insurance with a focus on workers’ compensation, medical treatment and public/property liability.

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James specialises in estate and succession planning for ultra-high and high net worth clients. He also has experience in estate and trust disputes including cross-border succession issues and conflicts, tax planning and related advice to trust structures for Australian and UK non-residents and probate and estate administration.

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Emma has extensive experience in advising clients in estate planning and estate administration, trust establishment, and ongoing administration, trust estate disputes and structuring for succession of ownership and control of private and family businesses...

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Noel advises his clients on commercial disputes and related matters including banking and finance, insolvency, the Competition and Consumer Act 2010 (Cth), ASIC and other regulatory issues.

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John’s practice focuses on personal injury litigation management. He acts primarily for WorkSafe Victoria and is responsible for managing the delivery of quality common law and statutory benefits service and outcomes.

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Andrew has more than 35 years’ experience in superannuation, trusts, estate and succession planning...

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Keith is a key figure in tax advisory, having been in significant roles within the profession for over 20 years...

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Andrew has extensive experience in the provision of advice and conduct of litigation for insurers.

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Eileen's practice includes personal and business succession planning, probate and estate administration, trusts and self-managed superannuation funds and tax and related strategies related to estate and succession planning.

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In over 33 years in the profession, Steve has accumulated a wide range of skills and extensive experience in commercial law and in particular, in all aspects of real estate and property development.

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Nikki is an experienced litigator who advises CTP insurers, with her practice focused on helping clients defend CTP and major claims.

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Melinda is an experienced insurance litigator who helps insurers resolve CTP claims involving complex liability and quantum issues.

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Emma is a specialist insurance lawyer. She has over 10 years’ experience in insurance litigation with a specific focus on professional indemnity and medical liability claims.

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John has broad experience in financial services, funds management, blockchain, corporate and commercial law, with a particular emphasis on funds management related matters.

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Vince Battaglia is an experienced funds management and financial services practitioner.  He has worked in global and national law firms, as well as at ASIC.

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Melinda provides strategic and practical advice on a range of employment and industrial relations law issues...

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Bree has worked almost exclusively in Insurance and Risk since being admitted to the Supreme Court of Western Australia in 2004...

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Matthew is a general commercial lawyer with more than 18 years’ experience covering a range of areas of practice including private M&A, general commercial and corporate transactions, projects and advisory work, family succession arrangements, non-contentious employment matters, property, contracts and governanc

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Sauming is a specialist insurance lawyer with over 11 years’ civil litigation experience in personal injury and property damage.

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Rosena practices in insurance litigation: state compensation and liability claims (personal injury and property damage)...

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Michael is an experienced insurance litigator who helps insurers resolve CTP claims involving complex issues including liability issues, multi-defendant issues and detailed quantum assessments as well as relatives' claims.

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David is a commercial litigator with extensive insolvency and reconstruction experience, and expertise in property disputes.

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Nik advises on a broad range of property related transactions and disputes.  With over 17 years legal experience, he has acted for a variety of financial institutions, finance and investment companies, joint venture partners, property developers, private and public companies, government agencies and local councils.

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Iona has experience in assisting clients with both litigious and non-litigious employment and workplace relations matters.

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Lauren has extensive experience representing employers, insurers and self-insured entities in the management and defence of workers’ compensation claims.

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Jillian provides practical and commercially-minded advice to private and public sector employers on a wide range of labour and employment and privacy matters.

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With over 20 years’ experience in property law, Peter is one of the senior members of the firm's Property & Projects team...

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Kirrilee has more than 15 years' legal experience and acts on behalf of insurers in relation to catastrophic and complex personal injury claims...

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With more than 20 years of legal experience, Vicky specialises in representing clients in a wide range of commercial disputes across Australia...

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Jim has over 10 years’ experience providing taxation advice on a broad range of corporate and trust tax matters, with a particular focus on the banking and finance, government and property and construction sectors.

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Kristopher advises on all aspects of migration to Australia, with particular emphasis on employment-related migration...

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Emily specialises in property and leasing law, acting for a variety of clients in property, real estate and leasing transactions...

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Amber is an experienced insurance litigator who helps insurers resolve CTP claims involving complex liability issues, catastrophic injuries, multi-defendant issues and detailed quantum assessments as well as compensation to relative claims.

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Scott advises on a wide variety of corporate and commercial disputes and insolvency matters. His clients include those in a range of industry sectors, including insolvency practitioners, energy and resources, commercial property, financial services and intellectual property and technology.

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Carl is an experienced insurance litigator who helps insurers resolve CTP and major claims involving complex liability issues, dual insurance, detailed quantum assessments and fraud...

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Rachel has over 15 years of experience advising on tax law and specialises in stamp duties, land tax and other tax issues in all Australian states and territories.

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Katherine is a commercial litigation specialist with a focus on insolvency, contract litigation, construction disputes and the Personal Property Securities Act 2009 (PPSA).

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Elisabeth advises her clients on commercial litigation, international arbitration, corporate insolvency, claims arising from contraventions of the Corporations Act 2001 (Cth), financial product disputes, tax litigation, business crime and fraud.

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Since arriving in Australia Albert has worked on various types of commercial disputes, for a range of clients including the Greater Building Society, Newcastle Airport, Port Stephens Council and various engineering companies based in Newcastle and the Hunter Valley.

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Vanessa has worked in the area of insurance law, with a specific focus on workers compensation and personal injury insurance litigation since beginning her career as a paralegal in 1996...

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Mark has more than 16 years’ experience in advising on construction and infrastructure projects. He has acted for public and private organisations on social infrastructure projects including housing, schools, hospitals, primary care facilities and specialist disability care homes.

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Louise has provided advice in personal injuries law for over 20 years, to both plaintiffs and defendants...

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Graeme has a broad practice in commercial dispute resolution, conducting small to complex litigation in the Supreme and Federal Courts, and mediation.

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Megan specialises in corporate litigation, bankruptcy and insolvency, shareholder disputes, partnership disputes, contractual disputes, breach of confidence and restraint of trade, banking matters, and Australian Consumer Law.

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Rebecca has been working in the legal profession since 1998. Her practice has focussed on insurance litigation, predominantly workers’ compensation claims.

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Tanya is an insurance specialist and an Accredited Specialist in personal injury.  For close to 20 years, she has worked with insurers and self-insured corporations to resolve CTP and public liability claims, including major claims.

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Conrad has a broad range of commercial experience, particularly in the areas of mergers and acquisitions, restructures and business succession, insolvency, and Corporations Act 2001 (Cth) compliance.

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Bettina is a highly experienced insurance lawyer who defends claims on behalf of domestic and international insurers and corporations...

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Sean has practised in insurance litigation since 1992, acting on behalf of defendant insurers and self insured across the CTP, workers compensation and public liability regimes...

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Chris has 20 years of experience in health and medical law, delivering solutions to clients in the insurance and health sectors...

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Jonathon is a Special Counsel in the Sydney Corporate and Commercial team. He has over 15 years’ transactional and advisory experience specialising in mergers and acquisitions, private equity, joint ventures, shareholder arrangements and corporate governance...

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Lauren has over 12 years’ experience, specialising in insurance litigation and practicing in the areas of workers compensation, compulsory third party and public liability claims...

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Anna has 10 years’ experience practising in property and projects. She has particular expertise in managing large volumes of conveyancing work for developers.

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Thomas is an experienced litigation lawyer with knowledge across a diverse range of litigation practice areas...

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Sam’s practice focuses on estate and succession planning...

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Krisha has 19 years’ workers compensation and common law experience with a particular focus on section 151Z indemnity claims.

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Taleen has significant experience in insurance litigation and advice in workers’ compensation and public liability matters in Western Australia and the Northern Territory...

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Amy practices in insurance litigation and personal injury law.

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Marisa’s practice focuses on common law and statutory benefits claims brought pursuant to the Accident Compensation Act 1985 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

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Catherine is an experienced insurance lawyer who focuses on public liability and property damage claims.

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Jacinta’s current practice includes direct and indirect taxes, business transactions, corporate restructuring, taxation disputes (including pre-audit, audit and litigation), the not-for-profit sector and trusts.

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James has more than 8 years of experience working across a broad range of general commercial transactions and arrangements, including acting in mergers, acquisitions and restructures and drafting general commercial agreements.

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David is an experienced employment and industrial relations lawyer. He acts for a range of local and global clients across a wide range of industries.

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Glenn is an experienced litigator practicing predominately in commercial litigation with a focus on corporate and personal insolvency...

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Barbara works with insurers on CTP and public liability insurance claims involving sensitive and complex matters, often involving multi-defendant and medical causation issues.

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Jessica’s practice concentrates on personal injury litigation management. Jessica focuses on achieving quality outcomes for her clients in worker’s compensation matters, including statutory benefits and common law claims under the Accident Compensation Act and the Workplace Injury Rehabilitation and Compensation Act...

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Ben has a broad knowledge across all disciplines of property, planning and construction and currently acts for clients in a wide range of matters in the firm’s Property & Projects practice.

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Elise's practice focuses on common law and statutory benefits claims brought pursuant to the Accident Compensation Act 1985 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) and common law claims brought pursuant to the Transport Accident Act 1986 (Vic).

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Anthony assists insurers to resolve CTP claims involving complex liability and quantum issues, fraud, catastrophic injuries, nervous shock, multi-defendant matters and administrative law challenges.

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Jane-Elise is an experienced insurance lawyer whose practise focuses on general liability. Her clients include international insurers and large self-insured corporations.

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Adam is an experienced tax lawyer, and advises clients on a range of matters including tax planning and structuring, Division 7A, the small business CGT concessions, corporate restructuring, professional firm structures, trust taxation, the taxation of settlements and cryptocurrency taxation.

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Elizabeth is a commercial litigation lawyer who specialises in corporate and commercial dispute resolution, with a particular focus on contractual disputes, consumer law, corporations and equity, real property disputes and insolvency.

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Jennifer has over 10 years’ experience in the insurance industry and has worked in both private practice and in house defending claims under the Personal Injuries Proceedings Act 2002 and the Workers Compensation and Rehabilitation Act 2003.

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Natasha acts for a variety of professionals in the defence of professional negligence and other claims arising out of purely economic loss, property damage, defamation, and alleged breaches of the Australian Consumer Law.

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Felicity is an experienced energy and resources and corporate lawyer, who specialises in general corporate and commercial matters, rail, infrastructure and energy and resources...

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Catherine's expertise include compulsory third party (CTP) and public liability claims, including major claims, section 151z recovery matters and defendant insurance litigation.

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Belinda’s practice focuses on the litigation of common law claims brought pursuant to the Transport Accident Act 1986 (Vic) and common law and statutory benefits claims brought pursuant to the Accident Compensation Act 1985 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

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Alexandra has experience acting on behalf of and advising both public and private sector clients in a broad range of industries including in the tertiary education, apprenticeship training and retail sectors.

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Sarah is an experienced employment and industrial relations lawyer.  Sarah acts for a range of local and global clients across a wide range of industries in both litigious and non-litigious employment and industrial relations matters.

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Diana specialises in personal injury law and insurance litigation.

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Kate has close to 10 years' experience specialising in succession law including wills, testamentary and discretionary trusts, protective trusts, powers of attorney, appointments of guardian advanced health directives and probate and letters of administration.

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Julian is an experienced senior litigator who has acted in high profile, complex and fiercely contested commercial litigation, public inquiries and investigations on behalf of companies, individuals (including members of parliament) and Government entities.

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Sarah has over 10 years’ experience in workers’ compensation and personal injuries claims. She has worked predominately on workers’ compensation matters in Queensland and more recently in the Western Australian jurisdiction

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Terri is an experienced insurance and litigation lawyer who has defended claims on behalf of domestic and international insurers for a decade...

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Katherine’s practice is predominantly in the area of general commercial dispute resolution and litigation and includes tax litigation and tax audit, contractual disputes, leasing disputes, restraint of trade injunctions, debt recovery, and insolvency and corporations matters.

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George has particular expertise in representing and advising insurers in relation to large scale litigation including class actions, indemnity disputes and insurance fraud claims, as well as public and product liability and professional indemnity claims.

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William specialises in private M&A and general commercial transactions and provides strategic advice on acquisitions, restructures and exits...

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Sheridan specialises in insurance litigation, with particular experience in complex claims and fraud...

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Ben’s practice focuses on common law and statutory benefits claims brought pursuant to the Accident Compensation Act 1985 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

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Clare is passionate, practical and results-oriented employment lawyer who takes pride in providing commercially-minded advice, exceptional communication and effective problem-solving skills to all types of employment, industrial and safety issues.

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Jennifer has significant experience in general insurance litigation. Her experience includes public and product liability, property damage and compulsory third party insurance...

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Jamie is an experienced lawyer with her practice focusing primarily on CTP claims, in particular non-meritorious claims.

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Daniella’s practice focuses on common law and statutory benefit claims in all jurisdictions, where she continuously delivers quality results.

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Rachel is a tax lawyer specialising in direct taxes and tax disputes. Rachel’s areas of experience include advising on a variety of domestic and international tax laws...

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Kate has a broad practice, having experience in public and product liability, professional indemnity, fraud and policy interpretation...

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Holly provides advice and acts on behalf of insurers in a variety of CTP claims including advising on complex quantum and liability issues and representing insurers in the Local and District Courts and the Claims Assessment and Resolution Service.

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Mark has a broad range of experience in corporate and commercial practice areas, with a particular focus on the sports and media industries.

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  • Fluent in Chinese

Joey’s practice focuses on property acquisitions and sales, property due diligence, contract negotiations, commercial leasing, and foreign investments.

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Jeanette has over 10 years’ experience working in the Asia-Pacific region. She specialises in advising borrowers and financial institutions on bilateral and syndicated financing, as well as cross-border project financing.

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Tina is experienced in defending public and product liability claims in New South Wales and Queensland on behalf of domestic and international insurers.

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William is an experienced litigator with over 11 years’ experience in both Australia and overseas and currently practices in multiple Australian jurisdictions...

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Stacey has over 6 years’ experience in workers’ compensation law. In addition to her workers’ compensation practice, Stacey has specialised expertise in common law, public liability and asbestos claims.

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David’s practice is predominantly in commercial litigation and insolvency...

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Donna has approximately 20 years’ experience in alternative dispute resolution through her previous roles in the insurance and legal industry...

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Bianca’s commercial dispute resolution and litigation practice extends to include acting for entities and individuals in contractual disputes, high quantum intellectual property disputes, breach of confidence and restraint of trade matters, shareholder oppression claims, partnership disputes, estate disputes and large equitable disputes.

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Nina has 11 years’ broad experience as a commercial lawyer with a specialty in intellectual property and information technology law, and related areas of practice including privacy, data security and competition law.

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Amber has more than 12 years of experience in the legal insurance sphere, and has covered the field, working in State and Federal Government legal practices, private practice and in-house at WorkCover in 2011.

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Hamish is a commercial dispute resolution lawyer. His experience extends to applications for urgent relief, appellate matters and defence of class actions.

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Victoria’s practice focuses on the common law and statutory benefits claims brought pursuant to the Accident Compensation Act 1985 (Vic) and Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

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With over fourteen years’ experience working in the NSW workers compensation area, Jenny is a highly skilled and proficient lawyer who defends statutory and common law workers compensation claims.

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Toniel’s practice focuses on general insurance advice and litigation. She manages complex and varied matters for a number of high profile insurers and private clients.

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Elisa's practice focuses on common law and statutory benefits claims brought pursuant to the Accident Compensation Act 1985 (Vic) and the Workplace Injury Rehabilitation and Compensation Act 2014 (Vic).

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Hannah practices in general insurance litigation with a particular focus on claims and risk...

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Rebecca's areas of expertise include the preparation of design and construction documents, and construction dispute advice and litigation...

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Jessica practices in employment and workplace relations law and provides strategic advice to clients across a range of industries.

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Pia is a Senior Associate in the Commercial Dispute Resolution team with experience across general commercial litigation, banking enforcement and insolvency...

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Markus’ practice focuses on statutory benefits claims brought pursuant to the Accident Compensation Act 1985 (Vic) and Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

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Liz's practice focuses on state compensation and liability claims. She has developed particular expertise in identifying and managing complex and technical liability and state compensation claims, considering, analysing and providing commercial advice to both insurers and self-insured employers...

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Lauren specialises in resolving disputes, and works collaboratively with her team and with clients to provide strategic advice and success for the client...

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Kathryn advises and represents clients in a wide range of matters, including general commercial litigation, banking and finance litigation involving mortgages, guarantees and loan agreements, debt recovery and enforcement and corporate insolvency advice.

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Brandon is an experienced insurance litigator specialising in workers’ compensation, medical treatment liability and public liability claims.

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Mitch is an experienced insurance and litigation lawyer who has defended claims on behalf of insurer and private clients as well as state government departments.

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Zoe acts predominately for corporate clients and company directors in cases involving contractual disputes, fraud, corporations and equity matters, competition and consumer law...

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Bridget is an experienced insurance and litigation lawyer who has acted for leading Australian and international insurers and underwriters...

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Shane has a broad commercial and regulatory litigation practice, encompassing investment fund and trustee disputes, banking and company law, financial services, civil and commercial fraud, aviation, construction and infrastructure disputes.

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Belinda is an insurance lawyer with decades of experience over a range of jurisdictions. Belinda is an Accredited Specialist in Personal Injury Law...

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Ebonie has worked in the area of insurance law since 2011. She has a specific interest in representing employers in workers compensation claims, with her practice encompassing both physical injury and psychological injury claims in both litigated and non-litigated advice matters.

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Melissa is an experienced insurance lawyer who focuses on advising major national insurers on CTP and public liability claims ranging from homeowners to small businesses.

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Dr Wolfgang Babeck has more than 20 years’ experience as a corporate and commercial lawyer and is admitted in New South Wales, England & Wales and as Rechtsanwalt in Germany...

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Sumith Perera

Chief Operating Officer

Sumith is the Chief Operating Officer and the national Head of Corporate Services at Hall & Wilcox. He has over 20 years' experience in leading and managing teams at professional services firms.

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Peter is the Client Solutions Director at Hall & Wilcox where he drives their Smarter Law program and fosters innovation at the firm...

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Dean is the Head of Hall & Wilcox’s Finance team. He has over 15 years’ experience in finance within professional services firms.

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Katie is the Director of People & Culture for Hall & Wilcox. She has over 20 years’ experience in the legal industry.

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Melanie is the national head of Hall & Wilcox’s Business Development, Marketing & Communications team...

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Mike manages the Legal Excellence & Risk team at Hall & Wilcox and is responsible for the firm’s precedents, risk management and general counsel/company secretarial functions.

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Pious is the IT manager and head of IT nationally at Hall & Wilcox. He has over 18 years’ experience as a senior IT executive with a proven track record in legal and government technology management sectors.

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Melinda is the national marketing and communications manager at Hall & Wilcox. She has more than 20 years’ experience as a journalist, content creator and marketing communications specialist at professional services firms.

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