Common Law Joint Liability Protocol
The objective of this protocol is to ensure that where WorkCover Queensland and other liability insurers are both liable to contribute to the cost of a claim:
1. Issues around amount of contribution are resolved as quickly and simply as possible.
2. Where possible and as appropriate, the ongoing management of that claim is conducted by only one party and from that point any legal costs or other outlays are shared equally.
How the protocol is implemented
WorkCover identifies that a Third Party (TP) is potentially responsible to contribute to the cost of a claim during the pre-proceedings phase of a common law claim under the Workers' Compensation and Rehabilitation Act 2003 (the Act).
WorkCover will then make direct contact with the TP solicitor to identify the liability insurer and to check if the insurer will be indemnifying the TP in relation to the claim.
If it is confirmed that another insurer is involved, WorkCover should advise the TP Solicitor that it would like to invoke this protocol and the TP Solicitor should be encouraged to contact the other insurer to obtain instructions and/or direct contact can be made with the other insurer.
Discussions should then be had in relation to liability, quantum and the ongoing management of the claim.
Our approach to these discussions is to get to an agreed contribution as quickly as possible. To that end we should be open and frank in our discussions rather than treating this as a standard negotiation.
If agreement cannot be reached, the issue should be referred to a WorkCover manager who will then discuss the claim with a manager from the other insurer to again see if agreement can be reached.
If agreement cannot be reached, then some form of alternative dispute resolution should be used to resolve the issue of contribution between WorkCover and the other insurer. For example, a joint opinion should be obtained from a barrister as to respective contributions with the opinion of the barrister binding on both WorkCover and the other insurer.
Any limitation, entitlement and compliance issues, plus unassessed injuries should be discussed as part of initial contact.
Initial and ongoing discussions should be undertaken regarding the value of the claim for estimating purposes for both insurers.
Discussions regarding independent medical examinations (IME) and other allied health assessments should be undertaken as part of initial and ongoing contact.
This can be undertaken in two pathways:
1. Each party continues to manage its' own claim but with agreement in principle on liability, quantum and clear steps, jointly and/or separately to work towards early claims resolution, in particular informal resolution and expediting compulsory conference in a timely manner.
This may involve joint IME, factual investigations and other activities in managing the claims.
2. Where possible and as appropriate, the party with the highest level of contribution should retain the ongoing management of the claim (the "managing insurer"). From that point any legal costs or other outlays are shared equally between both parties.
The managing insurer is authorised to make all decisions on the day to day management of the claim with the exception of a decision about the making or acceptance of an offer. These decisions need to be made jointly by both WorkCover and the other insurer.
This authorisation excludes referrals to undertake surveillance and other compliance issues and specific issues related to disclosure under Personal Injuries Proceedings Act (PIPA) and the Act.
The managing insurer should keep the other insurer up to date with the progress of the claim to enable the other insurer to keep their insured appropriately advised including estimate updates.
The managing insurer's lawyers should be appointed to jointly represent both WorkCover (and the employer) as well as the other insurer and the TP. This is on the basis that contribution will be resolved.
Legal fees and outlays will be shared equally between WorkCover and the other insurer.
If WorkCover has already appointed an external panel solicitor, they should be instructed to maintain a watching brief over the claim only.
Information should be shared freely and openly between both WorkCover and other insurer to facilitate appropriate resolution of any issues between WorkCover and other insurer and to assist with the ongoing management of the claim.
- Last updated
- 29 June 2015