The “tools of trade” of the personal injury (PI) lawyer have remained the same (with various tweaks and revisions) since I pressed “pause” on my practice as a defendant/ insurer retained principal. Leaving behind the WorkCover and insurer retainers, which I had experienced the pleasure and pain of since getting admitted in 1991, I dived headlong into the deep waters of the (then) newly introduced Fair Work Act 2009 (Cth). The employment law path was rewarding, with many high points and gratefully received accolades. But it seems that while you can take the lawyer out of PI, you can’t take the PI out of the lawyer. So here I am back in the PI field, albeit wearing the “white hat” of the claimant perspective and not my former insurer “black hat”. So, what general observations and opportunities have I discovered as I return to the fold?
The first observation is to that, to a certain extent, nothing much has changed. As already mentioned, the applicable legislation is amended but largely unchanged in Queensland. Many of my colleagues on both sides of the fence are still practicing in the field – older and (hopefully) wiser. Indeed, I have joined the firm founded and championed by my friend Travis Schultz, who was once my fiercest adversary. We have always appreciated each other’s tenacity, “passion” for advancing the client’s case and ethical standards, making it an easy decision to join forces and work together with a similarly minded team. So, there is that comforting element of familiarity and common purpose to everything.
But there are also aspects to that “sameness” about the way PI is practiced that sees hidden opportunities emerge while my employment law disciplines are still to the fore. These fall into two broad categories – instigating communication and interaction between personal injuries lawyers and employment lawyers (and vice versa); and utilising employment law expertise to elevate the assessments of economic loss and loss of earning capacity in personal injury matters to a more equitable level.
Opportunity #1: Instigating more communication and interaction between employment and PI lawyers
I am unsure why this cross pollination isn’t already common place. Perhaps, as a starting point, it is because specialisation in (particularly plaintiff) personal injury practice is incompatible with some other practices within a firm. A firm would rightly have issues with a plaintiff personal injuries partner acting for an injured worker making a negligence claim against an employer that a commercial partner of the same firm represented. As a result, plaintiff personal injuries practice has largely filtered out to standalone specialist practices such as ours or to smaller practices where conflicts do not reach unmanageable levels.
Perhaps available ongoing practice development and training also reinforces this “separation”. I have attended and spoken at many employment law conferences over the years and noted that there is nothing on the agenda likely to engage with a PI lawyer. Attending PI conferences to maintain my personal injuries accreditation, I can make the same observation about lack of engagement with employment lawyers. Through my role in LAWASIA, I am certainly trying to address this lack of interaction.
Opportunity #2: Utilising employment law expertise and disciplines to elevate an individual’s economic loss claims to an equitable level
My second observed opportunity highlights how our clients, people who have been injured at no fault of their own, would benefit from some integration of employment and personal injury law specialties.
A snapshot scenario will assist and starkly highlight the opportunity that has caught and held my attention. Consider a full-time permanent café employee who sustains an injury and progresses to a common law claim (it is immaterial whether the claim is a workers’ compensation, motor vehicle or public liability claim for the purposes of these observations). Currently, both claimant and respondent PI lawyers will receive information from the employer as to what the claimant was being paid immediately prior to sustaining injury. That information then generally forms the basis of calculations for the claim for past and future economic loss, although claimant and respondent lawyers will have differing perspectives on percentage of impairment and resulting effect on employability, discounting factors and so on.
However, we all know from numerous reports in the legal and general press that employers on many occasions do not pay employees their proper wages and entitlements. Recent underpayment cases have identified employers paying employees under an incorrect or invalid industrial instrument, incorrectly classifying employees, incorrectly treating work as unpaid “reasonable additional hours” instead of as overtime, failing to pay for the minimum number of rostered hours, failing to reconcile hours worked as a salaried employee against the applicable Modern Award or industrial instrument, and underpaying or failing to pay allowances and other entitlements. As an example, we’ve seen this in the workplaces of a former Masterchef, 7-Eleven, Coles, Woolworths – the list of high-profile examples goes on and on.
With this in mind, and both my employment and PI lawyer hats on, I can see there are lots of examples that would sway PI lawyers to not necessarily trust what an employer may say about a claimant’s pre-injury rate of pay.
But what does that mean in practice?
Going back to my example scenario, if that café employee claimant was being paid as a Level 1 employee under the Restaurant Industry Award 2020 (current minimum weekly pay $794.80) when they ought to have actually been paid as a Level 3 under the Fast Food Industry Award 2020, (current minimum weekly pay $913.40), one will see that an employment lawyer review of a claimant’s correct income level as the basis of any economic loss claim has increased the benchmark starting point by over $120 per week, just on minimum rates. That is also without consideration of differing Award conditions and entitlements and the claimant’s rights to recover past underpayments (and potential civil penalties in the Fair Work or equivalent system).
This opinion piece is too short to also go diving into other employment law avenues of relevant overlap, such as stop bullying/ sexual harassment applications, adverse action, human rights applications and wage theft claims. I’ll save that for my next article!
Suffice to say there are many opportunities for employment lawyers and PI lawyers to collaborate and benefit people who have been injured at no fault of their own. I’m pleased to say since my return to the PI field, a lot of those conversations have commenced within our firm, with my employment law colleagues and our regular panel of barristers; and I am truly looking forward to translating those discussions into action!
As published in Lawyers Weekly.
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