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QGIF Deny Liability

Is the Queensland government’s insurance agency deliberately making it harder for claimants to obtain compensation?

On the 19th of May, 2016 the Courier Mail published an editorial concerning allegations that the Queensland Government’s Insurance Fund (QGIF) instructed their solicitors to systematically deny being legally responsible even in circumstances where the government’s negligence was “obvious”.  So whenever a claimant made an initial application for compensation with QGIF, regardless of the evidence before them, QGIF would deny liability.

If this allegation were found to be true, we should all be outraged!

We should be outraged because the automatic denial of liability by QGIF in personal injury, WorkCover or motor vehicle accident[1] applications has two significant impacts on the claimant. Firstly, the claim’s process will become more expensive for the claimant. Secondly, this alleged practice of uniformly denying liability, regardless of any compelling evidence, raises serious issues pertaining to the government’s agency possibly being in breach of both the law, for example the Personal Injuries Proceedings Act 2002 (Qld) and the government’s own Model Litigant Principles[2].

Is the government in breach of the Personal Injuries Proceedings Act 2002 (Qld)?

The Personal Injuries Proceedings Act 2002 (Qld) (PIPA ) was introduced by the Queensland government in 2002 to primarily protect the insurance industry as insurance premiums were allegedly skyrocketing as a result of “too many” personal insurance claim being made and allegedly, claimants were being paid “too much”.  PIPA essentially aimed to limit the amount that could be paid in the form of compensation to a claimant.

Of note the PIPA legislation reads:

Part 2 Main purpose and application of Act

4 Main purpose
(1) The main purpose of this Act is to assist the ongoing affordability of insurance through appropriate and sustainable awards of damages for personal injury.

(2) The main purpose is to be achieved generally by—

(a) providing a procedure for the speedy resolution of claims for damages for personal injury to which this Act applies; and

(b) promoting settlement of claims at an early stage wherever possible; and

(c) ensuring that a person may not start a proceeding in a court based on a claim without being fully prepared for resolution of the claim by settlement or trial; and

(d) putting reasonable limits on awards of damages based on claims; and

(e) minimising the costs of claims; and

(f) regulating inappropriate advertising and touting.

IF QGIF is categorically denying liability regardless of the merits of the claimant’s case, QGIF is quite likely to be in breach of:

  • Section 4(2)(b) because by denying liability, regardless of the strength of the claimant’s case, discourages an early settlement of the claim as the claimant will have to resort to providing a counter-argument to QGIF’s position.
  • Section 4(2)e) because by uniformly denying liability QGIF, is in effect, forcing the claimant to pursue the matter further and thus incur further legal expenses.

Denying liability will increase costs for the claimant and ultimately, Queenslanders.

If QGIF does in fact categorically deny liability, even in circumstances where the government’s negligence is clear cut, this strategy will not reduce the costs of the process for both claimant and in insurer as the claimant will know that they are right and will not give up.  All that denying liability does is force the claimant to invest their time and money into investigating the matter further, speaking with more witnesses, commissioning expert witnesses such as engineers to compile reports  etc. which significantly increases the amount of time and money that has to be invested in proving the truth of the claim.

In the event that the claimant is successful in arguing that QGIF is liable, the expense the claimant incurred in proving QGIF’s liability will have to be reimbursed by QGIF to the claimant as part of the costs of the claim’s process. In effect, by initially denying liability at the beginning of the claim’s process, QGIF are making the claim’s process more expensive not only for the claimant but also for QGIF and thus the other Queensland government agencies that have to pay QGIF premiums. As government agencies are funded via taxes paid by the general population of Queensland, all Queenslanders in effect will end up paying for QGIF’s frivolous and unethical strategies.

Fair procedure will usually amount to fair outcomes: Queensland government’s Model Litigant Principles

Justice requires that as the government is both democratically elected by citizens and has access to far superior resources compared to that of the average citizen, the government should conduct themselves in a manner that is fair, is in the public interest, promotes public good and does not oppress citizens.  This conduct is enshrined in the Queensland government’s Model Litigant Principles[3].

The courts expect that the government act as a model litigant and thus holds the government to a higher standard than other litigants[4].  Unlike that of the ordinary citizen, the government is expected to not only obey the law but also abide by the same ethical obligations expected of solicitors[5].  Thus, for example, the government should attempt to keep costs of litigation to a minimum.

If the allegations as outlined in the Courier Mail‘s editorial have some base, then the government, as represented by QGIF, are in breach of their own Model Litigant Principles.

In the pursuit of government accountability, fairness and justice we need:

  • Queensland’s Attorney General , the Honourable Yvette D’Ath to initiate an investigation into the allegations that Crown Law solicitors have been allegedly instructed by their client, the Queensland government,  to consistently deny liability regardless of the high likelihood that the QGIF is liable.[6]
  • Amend PIPA to ensure that all government agencies, including that of QGIF, can be held more accountable if they are found to be deliberately increasing the cost of the litigation process for claimants.

[1] Whereby the government has assumed the role of nominal defendant.

[2] http://www.justice.qld.gov.au/__data/assets/pdf_file/0006/164679/model-litigant-principles.pdf

( accessed 24.05.16).

[3] http://www.justice.qld.gov.au/__data/assets/pdf_file/0006/164679/model-litigant-principles.pdf  (accessed 24.05.16).

[4] Per judicial pronouncement in Melbourne Steamship Co. Ltd v Moorehead (1912) 15 CLR 333, 342.

[5] Australian Solicitor Conduct Rules 2012 (the ASCR).

[6] http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1120&context=blr

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