Law Mutual News 

Risk Management Seminar Programme 2017/2018

Thanks to all who have attended or have registered for the risk management seminars.

The feedback on the seminars has been very encouraging and they are achieving our aim of delivering targeted risk management seminars to address the different risk concerns of our insureds.

We urge all practitioners to attend the seminars if possible. Every practitioner is entitled to two hours of no or low cost seminars. In addition, your firm may be entitled to a risk management discount on its next insurance application if it meets the principal and practitioner attendance requirements, in the period 1 March 2017 to 28 February 2018.

Risk Management Alerts

Law Mutual (WA) has conducted a review of recent claims and notifications (of circumstances likely to give rise to a claim) to ascertain whether there were any trends in underlying causes of claims.  It was evident from the review that there continues to be a significant percentage of claims and potential claims relating to an alleged failure to identify and comply with the election date to bring a Common Law claim in Workers Compensation matters, or an alleged failure to take the action out of the Inactive Cases List resulting in the matter being dismissed by the Court for want of prosecution.

The information below may assist in avoiding such claims. However, it is not comprehensive, does not constitute legal advice, and is provided only by way of guidance for Insureds.

Workers Compensation Common Law Claim

Under the Workers Compensation Act an injured worker who is entitled to workers compensation can only make a common law claim against their employer for that injury if they meet the following criteria:

• Be assessed at  a minimum of 15% or more ‘whole person impairment’
• Elect to retain the right to seek common law damages before the Termination Date
• Prove fault or negligence on behalf of the employer

The ‘termination date’ is different for each injured worker but is generally 12 months from when a claim for weekly payments of compensation was made to the employer.

If the termination date is missed, then an action in common law against an employer for that injury cannot be commenced.

Inactive Cases List Claims

When an action is placed on the Inactive Cases List, the Court will provide all parties with written notice that this has occurred.  Practitioners must, as soon as practicable after receiving the notice, inform the client of the fact that the case is on the Inactive Cases List and the effect of the District Court Rules 2005.

When an action has been on the Inactive Cases List for six continuous months, it is taken to have been dismissed for want of prosecution.  The Principal Registrar will give notice to all parties if this occurs, but no prior warning that it is about to occur will be provided.  Practitioners must, as soon as practicable after receiving the notice, inform the client of the fact and send a copy of the notice to the party.

Where an action is dismissed for want of prosecution, the parties may apply to the court for consequential orders as to costs or the disposition of a counterclaim.

In exceptional circumstances and on such terms as it thinks fit, the Court may set aside the dismissal of a case for want of prosecution.

Risk Management Controls

Practices need to consider implementing important date tracking procedures and training to control the risk of failing to comply with limitation periods and court orders. 

Controls recommended in the Law Mutual (WA) Risk and Control Map (available on the Law Mutual (WA) website) include:

Early identification of timing issues built into standardised engagement and work processes

It is imperative that legal practitioner’s undertake the relevant enquiries at the commencement of a matter to ascertain and correctly identify key dates and deadlines.

It is also important for the legal practitioner to advise the client of the impending court deadline or expiration of a limitation period, particularly if the client is slow to respond to requests for instructions.  Providing this advice in writing to the client will assist in the defence of a claim for professional negligence, if a claim is pursued at a later date.

Diarisation and reminder systems, including checks against oversight by the diary user

Implementing a system that allows multiple users to access and oversee the diarised limitation dates and court deadlines, provides a second level of supervision to the process, increasing the level of control over the risk of missing a key date or deadline.

Matter planning and review processes to take account of deadlines or timing issues that could be overlooked while other options or resolution strategies are being pursued

In relation to workers compensation claims, practitioners need to bear in mind that the client may have more than one cause of action arising from the loss, resulting in more than one limitation period applying to the matter.  All important dates should be identified, recorded and tracked.

Regular review of all open files

Periodic file reviews, peer reviews and lessons learned exercises can further assist to control the risk of failing to identify record and track key dates and deadlines.

Get to know your Law Mutual (WA)

Vicki Coles, Manager Risk

Vicki commenced her professional career as a lawyer in England and Wales, practising predominately in the area of family law. Having been admitted to practice in Western Australia in March 2017, Vicki joined Law Mutual (WA) following a number of years working in both regional and metropolitan local governments in WA as a Governance and Risk Management Advisor.

Vicki is a member of the Governance Institute of Australia and has a keen interest in professional liability risk management.

Outside of work, Vicki enjoys spending time with her son Thomas, long walks in Whiteman Park with her dog Ruby and immersing herself in the Australian culture.

Upcoming risk management seminars

Client Engagement Agreements – Planning for Success
Thursday, 23 November | 9.00am – 11.00am
Friday, 2 February 2018 | 2.00pm – 4.00pm

How to Stay Conflict Free for Small Practices
Tuesday, 30 January 2018 | 2.00pm – 3.00pm

Introduction to Practice Management and Matter Management Guidelines
Tuesday, 6 February, 2018 | 3.00pm – 5.00pm

Professional Liability Risks and Controls in Practice – are you accepting high risk clients and matters?
Thursday, 8 February 2018 | 10.00am – 11.00am

You’re not my client; are you?
Wednesday, 21 February 2018 | 9.00am – 10.00am

Contact Law Mutual (WA)

Street Address: Level 4, 160 St Georges Terrace, Perth WA 6000
Postal Address: PO Box Z5345, Perth WA 6831
Telephone:  (08) 9481 3111   |   Facsimile:  (08) 9481 3166
Email: info@lawmutualwa.com.au   |   Website: www.lawmutualwa.com.au