A Queensland police officer who attended the scene of a fatal car accident in 2013 has been awarded in excess of $1 million in damages by the Supreme Court of Queensland.
The accident involved a single vehicle only. The driver, affected by drugs and alcohol, lost control of the vehicle, causing it to leave the roadway and collide with a tree. The then senior constable brought a claim for damages for the psychiatric injuries he suffered as a consequence of attending the scene, administering first aid to the injured driver and shortly afterwards, witnessing the driver die. The claim was brought by the police officer against the CTP insurer of the vehicle.
Arguments at the trial
It was not disputed that the accident occurred due to the negligence of the driver. The primary issue in dispute was whether the driver of the vehicle owed a duty of care to the plaintiff.
The plaintiff’s case
The plaintiff’s case was that the driver of the vehicle owed a duty of care to not cause psychiatric injury to any persons who, acting in the course of their employment as a police officer may be required to respond to and attend the scene of an accident caused by his driving (and see, hear or be required to undertake tasks causing them to witness death and/or suffering of persons at the scene).
The police officer further alleged that it was reasonably foreseeable that any person acting in their role as a police officer required to attend the scene, would suffered a psychiatric injury.
The insurer’s case
The insurer denied that the deceased (it’s insured) owed any duty as alleged by the plaintiff. It advanced several bases for adopting that position including:
- the risk of the officer suffering a psychiatric injury from his presence at the scene of the accident was not reasonably foreseeable by the plaintiff;
- alternatively, any risk of the plaintiff suffering such harm was slight and did not warrant the plaintiff taking action in respect of it;
- the driver did not owe the plaintiff any duty of care requiring him to take action to avoid causing the plaintiff psychiatric harm;
- no duty of care was owed to the plaintiff as a matter of policy (having regard to powers conferred upon him by other legislation).
The insurer suggested that the issue of whether a duty of care was owed in these circumstances had not been considered by Courts previously so in that sense the case was novel.
His Honour Justice Flanagan in approaching the issue first considered the concept of foreseeability, and after referring to a New South Wales Decision of Wicks (a case in which two police officers sued the State of New South Wales for psychiatric injuries caused by attending the scene of a train derailment), his honour framed the relevant enquiry as
“whether a reasonable person in Mr Williams’ position would have foreseen that a person in the position of the plaintiff, a serving police officer attending a motor vehicle accident of the kind that might result from Mr Williams’ negligence, might suffer recognisable psychiatric injury as a result of his experiences at the scene.”
The Court considered the role undertaken by the plaintiff at the scene of the accident and whether it was appropriate to refer to him as a ‘rescuer’. The plaintiff gave evidence that he adjusted the driver’s head to open his airway and spoke to him in words to the effect “come on mate, don’t give up”. The plaintiff also comforted the driver’s parents and assured him that he would be OK. The Court concluded in those circumstances that the plaintiff should in fact be classified a rescuer (rather than a mere bystander to the accident) and that his actions were performed in the ‘aftermath’ of the accident (as that concept was considered by Deane J in Jaensch v Coffey).
The policy issues raised by the insurer included what can broadly be described as a ‘floodgates’ argument to the effect that permitting the plaintiff in this case to recover damages would “unacceptably expand the categories of potential defendants and claimants in respect of psychiatric harm, and expose defendants to increased liability” (see ) . This argument was rejected on the grounds that the common law test already imposes strict requirements with respect to claims based on pure psychiatric injuries.
The insurer also submitted that the public are entitled to expect that police officers are equipped to avoid or resist psychiatric harm. Whilst agreeing that a policer officer might be better equipped than someone without training, on the facts of this claim, the plaintiff’s response to the accident (one which he was required to perform in accordance with his legal responsibilities) exposed him to deeply distressing and personalised circumstances.
The Court found in the circumstances that a duty of care was owed by the deceased driver to the plaintiff.
Causation and quantum
The plaintiff’s damages were reduced by 30% to reflect the degree of possibility that the plaintiff’s pre-existing vulnerability, coupled with the impact of his attending another fatal accident would have lead to the same outcome.
The insurer has filed a notice of appeal against the decision. Further information to follow shortly.
 Wicks v State Rail Authority (NSW) (2010) 241 CLR 60
QLS Accredited Specialist
P:(07) 3009 6555
The Queensland government is facing increasing pressure to follow Victoria and pass laws to legalise euthanasia, says leading legal firm Creevey Russell Lawyers.
Creevey Russell’s Wills and Estates lawyer Rachel Greenslade said the passing of the Assisted Dying Bill in Victoria could be replicated in other states and territories in coming years.
Ms Greenslade said while Queensland Premier Annastacia Palaszczuk has said the issue will not be considered in her state this year, she has left the door open to possible euthanasia reform.
“There is some strong support for the legalisation of euthanasia in Queensland including a push by the estate of former Brisbane Lord Mayor Clem Jones,” Ms Greenslade said.
Ms Greenslade said following an 18-month implementation period in Victoria, 2019 will mark the first time in Australia those suffering from terminal illnesses causing intolerable pain will have the right to choose to die with assistance.
“Quite rightfully, assisted dying comes with strict eligibility requirements,” she said.
“To be eligible you must be over 18, be suffering from an incurable illness, not be expected to live more than six months, be deemed capable of making decisions by two doctors and reside in Victoria for at least 12 months prior to applying for assisted dying.
“Patients who meet the eligibility criteria will be able to obtain a lethal drug from their doctor within 10 days of asking to die and after undergoing two independent medical assessments. The patient will also be responsible for administering the drug themselves but a doctor may assist in very rare situations where the patient is physically unable.”
“Although there is concern the new laws will make elderly patients more vulnerable to abuse and coercion, the legislation has a variety of safeguards including robust witnessing requirements and the creation of new criminal offences.”
“This is a very emotive issue, and until you have held the hand of a loved one dying from a terminal illness it is difficult to relate.”
“At the end of the day it is not about how family or the public feels; it is about granting someone the right to put an end to their own suffering.”
Rachel Greenslade (07) 4617 8777
A High Court ruling to set aside a prenuptial agreement does not change the importance of financial agreements in asset protection, according to leading legal firm Creevey Russell Lawyers.
Creevey Russell Partner Clare Creevey said the High Court judgment to set aside a pre-nup between the now deceased elderly millionaire property developer and his younger European bride highlights the need to properly finalise financial agreements early.
The High Court last week unanimously set aside the prenuptial agreement, which the wife had signed against her own legal advice, and another financial agreement signed after the wedding.
The decision overturned a Full Court of the Family Court decision which last year ruled the financial agreements were legally binding. The High Court ruling, which said the wife was powerless and had no choice but to sign, will result in another court deciding how the property pool should be divided.
Ms Creevey said: “This decision doesn’t change the importance of financial agreements in asset protection. Agreements between parties who have acted out of their own free will cannot be set aside.
“This judgment simply highlights the importance of finalising and signing the agreement early on, and in circumstances where the other party is not at a special disadvantage or is unable to exercise their own free will.”
The couple in the prenup had met over the internet and about 11 days before their wedding the Australian developer, who had assets between $18 million and $24 million, insisted his fiancée sign a prenup or the wedding would not go ahead. The agreement said if the couple separated within the first three years of marriage the woman would receive nothing.
Ms Creevey said: “A second agreement was signed in the months after they married, presumably because the husband’s lawyers were concerned the first agreement could be vulnerable to being set aside in the future because it was signed so close to the wedding.”
The parties separated four years later and the wife filed a court application to make a declaration that the agreement was not binding. In that application she also sought an order that she receive $1.1 million from the husband plus $104,000 in spousal maintenance. The husband died in 2014 during the first proceedings and the executors of his estate took over the proceedings on his behalf.
The matter will now proceed to the Federal Circuit Court where the wife’s application for property adjustment and spousal maintenance will be determined.
For further details do not hesitate to contact Clare Creevey or Jacinta Norris on (07) 3009 6555
You are walking down the street in Cavill Avenue, and a police officer pulls you aside and advises you that they are conducting a search of you – what can you do?
When can police search you without a warrant?
The starting position is that police have no general power to search anyone on the off chance of finding something incriminating. Thus, with limited exception, police have no right to search you.
To perform a warrantless search of a person in Queensland in public, the police officer/s conducting the search must reasonably suspect any of the prescribed circumstances outlined in section 30 of the Police Powers and Responsibilities Act 2000. There are many prescribed circumstances, but for the purpose of this article, we will focus on possession of dangerous drugs, which is a commonly relied upon reason for conducting warrantless searches.
The test for whether the search will be lawful comes down to whether or not there were grounds capable of supporting a reasonable suspicion that a person is in possession of dangerous drugs. What this means is a suspicion has to be honestly held and underpinned by sufficient facts and circumstances to show this belief at the time of conducting the search. The reasonableness of the search is not determined by what is found or happens after, rather it is determined by the actual state of the police officer/s mind at the time of performing the search.
An example of the facts police will rely on to search someone suspected of possessing dangerous drugs is:
- In regards to appearance – at the time of the search the person is unsteady on feet, pupils dilated, sweating, licking their lips, shaking; and/or
- a sniffer dog indicates the existence of dangerous drugs.
When police are conducting a search without a warrant, they are entitled to search anything in a person’s possession (e.g. bag) for dangerous drugs.
What can you do if police perform a search of you without a warrant?
- Provide your name and address, however, politely say that you’re unwilling to answer any further questions
- Ask if they have a warrant to perform the search.
See if someone can record what your appearance is at the time, and specifically ask the police officer/s what facts and circumstances gave rise to them conducting the search. This evidence may be able to be used at a pre-trial hearing to determine if any incriminating evidence found can be excluded on public policy grounds.
Please contact Patrick Quinn or Hugh Tait at Creevey Russell Lawyers on (07) 3009 6555 for further information.
April 3, 2017 in Personal Law
If you have accumulated wealth or even a family business or property which you intend to gift to your children under your will, you might be concerned that your children could ultimately lose part or all of that property if they go through a divorce or de facto separation. Perhaps you have accumulated property and you are concerned your new spouse might be entitled to some of it if you break up. Perhaps you just want some certainty that if you do separate from your spouse, you won’t need to go through a lengthy family law dispute.
The harsh reality is that all assets and liabilities are up for grabs in the event of a separation. It matters not whose name the asset is held in. Sure the court will take into account the fact that some property came from your side (whether by inheritance, gift from your family, or property you owned at the beginning of the relationship), which could even eventuate in you receiving a greater chunk of the property pool. However, the court will not take a dollar in dollar out approach. That is, just because you contribute a certain asset or sum of funds, does not mean that you will be able to retain that item/s if you separate, and it could very well end up in the hands of your former partner.
There is however one way to avoid this unfavourable outcome. By entering into a Financial Agreement (often referred to as a Binding Financial Agreement, BFA, or pre-nup), you can effectively contract out of the family law system, provided the Agreement adheres to the various requirements set out in the Family Law Act.
Whilst they are often called “pre-nups”, they do not have to be made before you marry, and de facto couples including same sex couples can enter into these types of agreements also. If you are a de facto couple, you can enter into a Financial Agreement:
- before you start living together;
- during your relationship when you are living together; or
- after you separate.
If you are married or intend on marrying, you can enter into an agreement:
- before you marry;
- during your marriage; or
- after you divorce.
A Financial Agreement can be as simple or as complex as you want it to be. For instance, if there is a particular property you wish to ensure you retain at the end of the relationship and you are not too concerned about what happens to the other assets and liabilities, you can enter into an Agreement that provides you will retain that property upon separation. The remaining assets and liabilities can be dealt with at the end of the relationship, either by agreement between you and your partner or if you can’t reach agreement by a court order.
Alternatively, you can have an agreement that deals with all property, including property you own at the time of the agreement, and future property you might accumulate. This option is particularly appealing if you wish to avoid a family law dispute altogether and the associated legal costs, and wish to have certainty as to your financial position in the event of a separation.
It is important that the Agreement is drafted by a lawyer experienced not only in family law, but in drafting these types of Agreements, and that both parties obtain independent legal advice before signing the Agreement about the advantages and disadvantages to you of entering into the Agreement and the effect of the Agreement on your rights. If the Agreement is not drafted in accordance with the requirements set out in the Family Law Act, the Agreement can be set aside and there have been many instances where this has occurred.
A compliant Financial Agreement is the only way you can have an agreement enforced upon separation. Any verbal agreement or even written and signed agreement will not be legally binding and will not be taken into account by a court.
When looking at Succession Planning, it is worthwhile considering a Financial Agreement for your children and their spouses to ensure your hard work is not lost in a lengthy and acrimonious court battle.
If you would like further information about Financial Agreements or wish to have a confidential discussion, please do not hesitate to contact Jacinta Norris of our office.
Creevey Russell Lawyers
Ph: 07 3009 6555
Family Lawyers Brisbane, Toowoomba, Roma
March 23, 2017 in Personal Law
Over the past year the Queensland Parliament has made changes to the laws surrounding domestic violence to mitigate the increasing rise of domestic violence related offences in Queensland. To coincide with other recent domestic violence reforms, the Bail (Domestic Violence) and Another Act Amendment Bill 2017 was passed on the 22 March 2017.
In summary, the following amendments have been made:
- GPS tracker
A person charged with a domestic violence offence can have a special bail condition imposed by the court or a police officer authorised to grant bail. This special condition provides for the fitting of a tracking device (or GPS tracker) to the alleged offender upon their release into the community.
- Presumption of bail reversed
The Bail Act 1980 (Qld) has been amended to reverse the presumption of bail for an alleged offender charged with a domestic violence offence and to further widen the circumstances in which a court or a authorised police officer can refuse bail, hence making it more difficult for an alleged offender to be granted bail.
- New system to alert victims when alleged offenders are released
A new system has been implemented whereby the Prosecutor must notify the alleged victim of a domestic violence offence when the defendant intends to make a bail application/variation within 24 hours. Further to this, the alleged victim must be notified immediately if the defendant is released on bail.
- Reporting provision
A mandatory reporting provision was introduced to the parole system for when someone incarcerated applies for and receives parole that allows an alleged victim of domestic violence to receive information about the incarcerated person, even if the offence is not a domestic violence offence.
- Urgent review of bail by higher court
A provision was introduced that allows the Prosecutor to urgently apply to the higher court for a review of the bail decision and the decision about release is stayed until the earliest of the following:
- The reviewing court makes an order subject to additional or substitute evidence;
- The review application is discontinued;
- 4pm on the day that is 3 business days after the day on which the decision about release was made.
It is vital to obtain legal advice in relation to all charges involving domestic violence. If you or someone you know requires advice in relation to domestic violence or criminal law matters please call our office to speak with a member of our criminal law team.
Criminal Lawyers Brisbane – Toowoomba – Roma
Press Release 14 March 2017
Regional Queensland towns are struggling through lack of services and support with all areas needing greater understanding from Government, says leading legal firm Creevey Russell Lawyers.
The firm’s Principal Dan Creevey has just completed a two-week regional road trip to offer free consultations with community members on any legal or other issue they may be experiencing.
Mr Creevey’s 3000klm tour stretched from Toowoomba to Middleton and back and included the Central West and Central Highlands communities of Roma, Charleville, Longreach, Winton, Barcaldine, Emerald, Rolleston, Moura and Taroom.
“Country towns are really struggling with lack of services and lack of support is extremely apparent,” said Mr Creevey, who plans to make the regional road trips regularly.
“They just want a greater understanding of their situation from authorities. Each area has its unique issues whether it be flood mitigation, prickly trees, bad roads or artesian water problems.”
Mr Creevey said clients and contacts were pleased to see a regional law firm in their town experiencing their situation first hand.
“We take great pride in the fact that Creevey Russell Lawyers is a rural and regional firm and we are always looking to give back to those communities,” Mr Creevey said.
“There is clearly a demand for us to be in our clients’ country and we will keep coming back. We can offer a wide variety of services to our clients, with expertise in areas of Agricultural Law, Commercial Law, Criminal Law, Property Law, Wills & Estates, Succession Planning, Family Law and Personal Law.
“It is no secret that many of the state’s regional communities have been doing it tough for many years due to a wide range of economic and environmental factors.
“The purpose of our regional tour was to connect with the people in these communities and listen to their concerns. We are already planning our next road trip for later in the year.”
If you would like to get in touch with Dan Creevey – or call 07 4617 8777
Creevey Russell Lawyers
Dan Creevey’s Western Qld Road Trip – Photos from the road – Bringing Expert Legal Services to the Bush
Dan Creevey hits the road for 2 weeks to bring Expert Legal Advice to Western Queensland on his first Road trip. Travelling to Roma, Mitchell, Charleville, Augathella, Tambo, Barcaldine, Longreach, Winton, Emerald, Rolleston, Moura, Taroom, Wandoan and everywhere in between. Dan is offering no obligation discussions with anyone facing any legal issues in these areas. Call 07 4617 8777 if you think Dan can help you.
February 9, 2017 in Personal Law
Creevey Russell Lawyers are often asked by client’s that are not citizens of Australia what effect a criminal conviction could have on their ability to remain in Australia.
Cancelling a Migration Act Visa
Under the Migration Act 1958 (Cth) section 201 a person who is not an Australian citizen but has been a permanent resident for less than 10 years, and who is convicted for an offence for which they are imprisoned for one year or more may be deported by DIAC. Section 501 of the Act provides much broader discretionary grounds and allows the Minister of DIAC to cancel a temporary or permanent visa on character grounds. Character grounds includes terms of imprisonment of 12 months or more as a substantial criminal record (s501(7)).
What is a substantial criminal record?
You will have a substantial criminal record if you were:
- sentenced to death or life imprisonment
- sentenced to prison for more than 12 months
- sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more (this includes all terms of imprisonment, including those that are to be served concurrently)
- acquitted of an offence on the grounds of unsoundness of mind or insanity and, as a result, been detained in a facility or institution
- found by a court not to be fit to plead in relation to offence but found to have committed the offence and as a result detained in a facility or institution.
Periods of imprisonment include time spent in periodic detention and court-ordered residential drug rehabilitation schemes
What should I do
If you are not a citizen of Australia and are charged with a criminal offence it is important that you seek advice on the effect that a conviction will have on your visa and ultimately you ability to remain in Australia.
For further information, please contact Patrick Quinn at Creevey Russell Lawyers.
Criminal Lawyers Brisbane
Criminal Lawyers Toowoomba
Criminal Lawyers Roma
The ATO has extended the 30 June 2016 deadline for SMSF trustees that have a related party loan under an LRBA (limited recourse borrowing arrangement) to ensure that the related party loan is on commercial terms or complies with the safe harbour guidelines. The deadlines have been extended to 31 Jan 17 and we recommend that all LRBA’s be reviewed for compliance with these new guidelines.
Under the practical compliance guidelines released by the ATO there are two methods to ensure that a related party loan in a LRBA is treated as commercial, known as the ‘safe harbour guidelines’:
- Ensure your terms and conditions of the loan align with the guidelines; or
- Re-finance the loan with a commercial financier.
The ‘safe harbour’ guidelines have different terms depending on the nature of the asset being acquired under the LRBA. The guidelines deal specifically with real property and listed shares or listed units in a unit trust and no other type of asset. Further, these terms must be outlined in a written executed loan agreement.
Safe harbour guidelines:
Loan Condition Real Property LRBA Listed Shares or units LRBA Interest Rate RBA standard variable housing loan for investors 5.75% for 2015/16 RBA standard variable housing loans for investors + 2% = 7.75% for 2015/16 Term of Loan Max 15 years Max 7 years LVR Max 70% (aggregate of all loans) Max 50% Security Registered mortgage Registered Charge Personal guarantees Not required Not required Type of repayment Principal + interest Principal + interest Frequency of repayment Monthly Monthly
Compliance with these safe harbour guidelines is not mandatory. However, to demonstrate your arrangement is commercial and consequently the income from the LRBA not treated as non-arm’s length income (NALI), you will need to have documentary evidence that related party loan terms and conditions are generally the same as those available from a commercial financier.
Therefore all existing LRBAs with a related party loan should be reviewed and either:
- Comply with the ATOs safe harbour guidelines for the 2015/16 financial years (compliance will ensure that previous years will not be assessed as (NALI);
- Ensure that 2015/16 repayments meet the ATOs safe harbour guidelines and refinance with a commercial lender;
- Repay the related party loan in full; OR
- Have documentary evidence that the LRBA related party loan terms are equivalent to a commercial lender’s terms.
For further information contact Creevey Russell Lawyers.