Strategic defence leads to defence at AAT

The defence of claims that are denied because an employee has engaged in serious and wilful misconduct, are difficult. The instances of success are few. 

HBA Legal successfully represented a client in defending a claim by an employee for an injury sustained after he rolled a prime mover. Due to the damage sustained to the vehicle as well as the employee’s failure to adhere to policies, his employment was terminated. The client denied liability for the claim on the grounds that the employee was not driving to conditions and had failed to wear a seat belt. 

At an early stage, it was decided that a resolution of the claim would not be entertained given the serious nature of the allegations involved. Accordingly, a hearing eventuated. From the start of the proceedings, it was clear that the Deputy President of the AAT in Perth also considered that there was considerable merit in the submissions made. 

Having identified this, it was agreed that a strategic approach should be taken to the hearing. Relying on the comments made by the Deputy President, we sought and obtained several concessions from the employee. This meant that we were able to confine the issue in dispute to whether the employee had failed to wear a seat belt. As this was the strongest argument, and given the views expressed by the Deputy President, if the employee was unable to succeed on this point, the employee agreed he would not succeed overall. 

After breaking for lunch, a further concession was made by the employee that if it was proven he had failed to wear a seat belt, then our client would be able to succeed on establishing that the failure had been wilful. This would only leave the issue of causation in dispute.

The employee presented poorly as a witness and following his evidence, the Deputy President suggested that he and his Counsel should have a serious discussion as to whether to proceed. Following that discussion, the Application was withdrawn.

This was clearly a very good result and is a great example of our strategic approach taken to claims and litigation. Through this approach we were able to narrow the scope of the hearing to one issue alone; an issue on which we knew the employee had little prospects of succeeding on.