|1.||Action required at the time of an incident||Immediately|
- At the time of an incident, agencies and their employees must:
- take immediate action to minimise the extent of property damage (but not at the expense of their own safety);
- notify an appropriate agency contact in accordance with established agency protocols;
- record details of the incident, including witnesses' names and contact details; and
- contact the police (if a crime has been committed).
- NOTE: In accordance with section 38 of the Work Health and Safety Act 2012, the regulator must be immediately advised of all incidents resulting in death or serious injury or illness (see section 36 for what constitutes a serious injury or illness), or a dangerous incident (see section 37 for what constitutes a dangerous incident), followed by a written report within 48 hours if required by the regulator.
In accordance with section 39 of the Work Health and Safety Act 2012, the employer must ensure so far as is reasonably practicable, that the site is not disturbed until an inspector arrives (or earlier if the inspector directs), unless this is necessary to assist an injured person for example.
- Where third parties are involved, agencies and their employees must not:
- admit liability, either verbally or in writing; or
- agree to pay or settle any third party costs.
|2.||Reporting an incident||Within 24 hours of the incident|
The Claims/Incidents Report Form must be completed, signed and emailed to the Fund Administration Agent, Jardine Lloyd Thompson Pty Ltd (JLT), at email@example.com within 24 hours of becoming aware of incidents which:
- are likely to result in a claim; or
- involve personal injury to a third party.
Important: If a writ or other
legal demand is received by an agency, it must be forwarded to the Office of
the Solicitor-General, with a copy sent to the FAA, as soon as possible to
allow the Office of the Solicitor-General to provide advice to an agency on the
Crown’s liability. The Office of the Solicitor-General and the FAA must also be
advised of details of any impending inquests or official enquiries.
It is important that the Office of
the Solicitor-General is provided with any legal demands received by an agency
as soon as possible to ensure there is adequate time in which to provide
appropriate advice to the agency and to lodge a defence. Agencies should
contact the FAA for a claim number to accompany the referral to the Office of
Any other communication received from
a third party should be forwarded to the FAA as soon as possible.
Agencies may have additional internal reporting requirements. These should be followed in accordance with agency guidelines.
If the property is leased, the property owners should also be advised of any incidents as they may have resulted in damage to the "base-building" (owner-responsibility) as well as to "fit out" (agency-responsibility).
|3.||Managing a claim||Ongoing|
Fund Administration Agent
- Upon receipt of a claim, the FAA will allocate a unique claim number to the claim and register it on its claims administartion database.
- JLT is responsible for:
- (following consultation with the agency) appointing and instructing a loss assessor and investigators, if required;
- providing claim management advice to agencies and, through agencies, the Office of the Solicitor-General;
- if requested by an agency, managing minor claims (up to $100 000), including appointing repair contractors, through a formal process that ensures value for money and that the process is open and transparent, adequately testing the market;
- regularly providing agencies with reports on the progress of, and actual and outstanding costs associated with, each claim including copies of reports from investigators / loss adjusters;
- where required, negotiating settlements with third parties;
- where appropriate, ensuring that a Deed of Release is prepared by the Office of the Solicitor-General and signed by the claimant to prevent further action arising from the same incident. The FAA is under instruction not to release a settlement cheque without a signed Deed of Release; and
- paying claim costs and settlements.
- Agencies are responsible for:
- making the site safe and, if necessary, organising alternative accommodation. In order to expedite this process, agencies should consider agreeing a pre-determined cost limit with JLT. Agencies may then spend up to this limit without needing to consult with JLT first; and
- organising and supervising repairs or building works, including scoping the work, preparing documentation etc, in accordance with government building and construction procurement guidelines (agencies may choose to delegate the management of repairs valued at less than $100 000 to JLT). The loss assessor must be involved throughout this process. Claims over $100,000 and up to $2 million are the responsibility of the Agency to manage. Claims over $2 million, or where Treasury determines that special circumstances exist, will be considered by a working group comprising a representative of the Agency, the FAA and Treasury. The working group will determine the claims management process to be followed on a case-by-case basis.
- Agencies must also instruct JLT (in writing) and, where applicable, the Office of the Solicitor-General, regarding the management of third-party claims, as the Agency is ultimately responsible for the management of claims.
Office of the Solicitor-General
The Office of the Solicitor-General is exclusively responsible for providing legal advice on claims.
The Office of the Solicitor-General must be involved in all negotiations, settlements, or court appearances regarding large or complex third-party claims and any claims concerning personal injury (excluding those personal injury claims made by approved agency volunteers where the amount of the claim does not, or is not likely to, exceed $10 000).
Large and/or complex claims include all claims EXCEPT FOR claims that meet ALL the following criteria:
- the amount claimed is less than $10 000 (including legal coast) arising from the one event or connected series of events; and
- the State's legal liability is clear; and
- there is unlikely to be any suggestion in future that settlement constitutes a precedent for other claims.
The Office of the Solicitor-General must also be advised whenever a legal demand is received by an agency (refer above).
The Office of the Solicitor-General will arrange for external legal assistance, in consultation with the agency, if it determines that it is required.
The Fund will only reimburse agencies if the Office of the
Solicitor-General considers there to be a legal liability on the part of the
Crown and that a settlement amount is reasonable. Agencies are directly
responsible for any additional amounts paid. If an action is to be settled, a
Deed of Release must first be prepared by the Office of the Solicitor-General
and signed by the claimant.
All claims must be managed in adherance to the Building Claims Policy.