Buying a House - insurance considered.
Did you know that a property is at your risk from 5pm on the first business day after the Contract Date? The type of insurance differs slightly depending on whether you buy a house or unit – we explain:
House and/or land
If the property is built on, we recommend that you arrange for insurance to be taken out as soon as possible with respect to your interest (as buyer) in the building/improvements and any chattels included in the sale. The policy should also include public liability. If you are obtaining finance, your bank will need to be noted on the policy as mortgagee.
If the property is vacant, we recommend that you take out insurance for public liability as soon as possible. Once the property is built on, we also recommend you take out a policy with respect to your interest in the building/improvements and chattels on the property.
Unit/Community titles scheme
Where your lot is part of a larger building or has common walls with another lot, the body corporate is required to insure the building (Situation 1). However if the dwelling on your lot is stand-alone, it is your responsibility to insure it (Situation 2) unless the body corporate has in place a voluntary insurance scheme.
If Situation 1 applies, we recommend that you arrange insurance cover for the contents of the unit (things like carpets, curtains, blinds and fixtures), for damage to the interior of the unit (e.g. caused by fire or leaking water), and public liability insurance for the interior of the lot. You should do this once the contract is signed.
If Situation 2 applies, we recommend that you arrange insurance for the building (at least until you determine whether an adequate voluntary insurance scheme for lot owners is in place), contents of the unit (like carpets, curtains, blinds and fixtures), for damage to the interior of the unit (e.g. caused by fire or leaking water), and public liability insurance for the lot. You should do this once the contract is signed. If you are obtaining finance, your bank will need to be noted on the building policy as mortgagee.
The body corporate is required to insure the body corporate assets, and for public liability on common property.
The Nominal Defendant: The insurer of last resort
It is Sunday afternoon and you are driving home after a day at the beach with friends. Suddenly through no fault of your own you are collected by another motor vehicle while waiting to turn at a set of lights. You are injured and feel as though your day couldn’t get any worse. Unfortunately it does… you discover the vehicle that caused the accident was unregistered.
Ordinarily in Queensland, an injured person may be entitled to seek compensation from the compulsory third party (CTP) insurer of the vehicle at fault for the accident.
But what if the at-fault vehicle isn’t registered (like in the above situation)? Or what if the at-fault vehicle cannot be identified (because, for instance, the driver of that vehicle leaves the scene of the accident)? Does the injured person loose their right to seek compensation for their losses? Fortunately, no.
The Nominal Defendant is a statutory corporation established under the Motor Accident Insurance Act 1994 (MAIA) which serves as an insurer of last resort. It’s purpose is to provide access to compensation to persons injured as a result of the negligent acts of drivers of unregistered (uninsured) or unidentified motor vehicles. A claim may be made against the Nominal Defendant in the following situations:
- Where the motor vehicle at fault for the accident cannot be identified and that vehicle would ordinarily require registration but is not registered or covered by a policy of CTP insurance at the time of the accident;
- Where the vehicle responsible for the accident cannot be identified. For example in a “hit and run”;
- When an accident is caused by a specific class of vehicle that is not required to be registered, but where the accident occurs on a road;
- Where an accident is caused by a trailer, where that trailer is not attached to a vehicle;
- Where the accident involves an at-fault vehicle that had been issued with a permit under the Transport Operations (Road Use Management – Vehicle Registration) Regulation 1999, authorising the use of an unregistered motor vehicle on roads.
Unfortunately, personal injuries claims against the Nominal Defendant can involve quite complex legal issues, and the legislative and procedural requirements that apply to bringing a claim are strict. Further, there are strict time limits which apply to claims against the Nominal Defendant.
In the event that you are involved in an accident, you should seek urgent legal advice. A lawyer will help protect your interests and ensure you receive access to any compensation to which you may be entitled.
POAs, GPAs, EPAs, and AHDs - what's the difference?
People often mistakenly think that having a valid will is all that is required for an “estate plan”. While having a will is important, it is equally important to have appropriate arrangements in place for substitute decision making because the decisions affect your lifestyle, health and financial position.
Losing the capacity to make decisions can impact on anyone so it is important to have a general understanding about different substitute decision making documents because they serve similar but different purposes as well as similar but different obligations on the appointed person/s.
A general power of attorney (GPA) allows a principal to appoint an attorney to make financial decisions on his, her or its behalf. The principal can be an individual or a company. A GPA will cease to have effect on a date specified by the principal or when the principal loses capacity to make decisions.
Generally, a GPA is prepared if a contract needs to be signed or transaction completed while the principal is outside the jurisdiction.
A GPA can be prepared for a sole director company. It is important to consider who will handle the company’s affairs once the sole director has lost capacity or is unable to act.
An enduring power of attorney (EPA) allows a principal to appoint attorneys to make personal/health and financial decisions on his/her behalf. An EPA differs from a GPA because it continues despite a principal having lost capacity so it is vital that a principal ensures he/she carefully considers who is appointed as an attorney.
Personal/health decisions can only be made once the principal has lost capacity. Financial decisions, on the other hand, can begin immediately or when the principal has lost capacity.
Personal/health decisions can include:
- where the principal should live;
- his/her diet and dress; and
- consent/refusal for particular types of health care.
Financial decisions can include:
- buying/selling property;
- operating bank accounts; and
- appropriate investments with regard to financial circumstances and needs.
An advance health directive (AHD) provides health care providers and personal/health attorneys with a principal’s health care directions for various medical conditions, such as:
- acceptance/refusal of blood transfusions;
- CPR; and
- artificial feeding and hydration.
Access to Workers Compensation cut for some Queensland workers
From 1 July 2013 the definition of “worker” under the Workers Compensation and Rehabilitation Act 2003 (WCRA) has changed.
Previously, as long as you worked for a contract of service you were a “worker” under the WCRA and entitled to claim workers compensation.
Now, to be a “worker” and claim workers compensation you must work for a contract of service and be a PAYG employee.
If you operate under your own ABN, you are no longer a “worker” under the WCRA and you are not entitled to claim workers compensation.
These changes do not affect injuries sustained before 1 July 2013 but do apply to any injuries sustained from 1 July 2013 onwards.
There are some exceptions to the rule. You should therefore obtain specialised legal advice if you are injured in the course of your work and are uncertain of your “worker” status and are considering making a claim.
Alternatives to workers compensation
If you are not a “worker” under the WCRA but are nonetheless injured in the course of your work and someone else has caused the accident, e.g. other contractors (a situation more likely to be seen in the construction, transport, hospitality and cleaning industries) you can still make a claim for damages. Your claim is made under public liability.
Even in circumstances where there is no claim available under public liability, you may be able to apply for income protection or Total and Permanent Disability (TPD) under your insurance or superannuation policies.
If you work with an ABN we strongly recommend that you revisit your current insurance arrangements. What you may need, and may not yet have, is your own public liability insurance to protect you from claims made against you.
Most people who work already have some form of sickness/accident/income protection and TPD under insurance and superannuation policies. If you need to make a claim you should obtain specialised legal advice as soon as you can as timeframes apply for lodging insurance claims.
More changes expected
One of the more significant events to have occurred this year in the area of Insurance and Compensation practice is the workers compensation parliamentary review.
Submissions put forward included a call for the elimination of journey claims, the imposition of a threshold for common law claims and changing the definitions of worker and injury. There was also a call to leave the scheme alone on the premise that it is the strongest performing workers compensation scheme in the country. The inquiry produced a thorough and reasoned analysis of the scheme complete with an extensive set of recommendations. The government’s response to the Inquiry is expected shortly, and further changes to the WCRA are expected.
Time Limitations for Making a Claim for Compensation
Have you suffered personal injury in a motor vehicle accident or slip and fall as a result of the carelessness (or “negligence” in legalese) of another in Queensland? You may have a right to make a personal injury claim for compensation.
However, in Queensland, there is a strict time limitation of three years in which a personal injury claim for compensation must be made – for example, if the accident that caused you injury/injuries occurred on 2 January 2013, court proceedings must be commenced strictly by 2 January 2016.
If court proceedings are not commenced within the three years, you will lose your right to make a claim for any compensation (although extensions are available in some cases, but are extremely difficult to obtain). It is also important to understand that before you are able to commence legal proceedings, you need to attend to various legislative procedural steps. Therefore, it is vital that you seek advice from your solicitor as soon as possible in order to protect your rights.
There is an exception to the three year limitation period from the date of accident in some cases, for example, cases involving children (under the age of 18) or patients suffering from a mental disability under the Mental Health Act 2000 (Qld).
In cases involving children, the three year time limit would begin from the date of their 18th birthday - for example, if a 14 year old suffers an injury which gives rise to a personal injury claim, then he/she will have until they are 21 years old, that is, 3 years after their 18th birthday, to commence legal proceedings.
In cases involving patients under the Mental Health Act 2000 (Qld), the three year limitation period would begin on the date that they are discharged as a patient (i.e. when they ceased to be under the disability).
In addition to the above, there may be other critical dates that apply to your claim.