GENERAL & PRODUCT LIABILITY

Covers legal liability to pay compensation to third parties for injury and/or damage to property arising out of the business activities or products.specifically relates to:

• Injury to any person
• Property Damage
• Advertising Injury

Injury includes bodily, death, illness, disease, false or wrongful arrest, libel, slander or defamation, discrimination, assault and battery.

Property damages means physical damage/ destruction of property including loss of use at any time resulting there from – and loss of use of tangible property.

Advertising injury includes libel, slander or defamation infringement of copyright, invasion of privacy and unfair completion – committed in any advertisement, publicity article or telecast.

LIMITS OF LIABILTIY

General Liability – $30 million

Property in care, custody or control – $250,000

DOES THE POLCIY PROVIDE BLANKET COVERAGE?

No!

What it does not include:

• Asbestos – liability arising out of, caused by or in connection with asbestos or materials containing asbestos.
• Aircraft & Watercraft –  liability arising from ownership, possession or use of aircraft or any watercraft in excess of 8 metres , but this exclusion shall not apply to watercraft which is are not owned by insured when such crafts are operated by independent contractors (must not enter into Chartered Party Agreement)  – or used for business entertainment.
• Employers’ Liability – liability for injury relating to employment practices and for which insurance against such liability is to be provided through workcover.
• Fines, Penalties and/or Liquidated Damages imposed by law or assumed by the insured under any contract, warrant or disagreement.
• Industrial Awards
• Loss of use of tangible property which has not been physically damaged or destroyed as a result of non use and/or failure of the products to meet the level of performance, quality, fitness or durability expressly warranted.
• Liability arising out of Pollution – and any costs incurred in the prevention, removing, nullifying or clean up. (Note though that this inclusion does apply where the liability arises from a sudden identifiable, unintended and unexpected event which takes places in its entirety at a specific time and place). –
• Property Owned By or in the Care, Custody or Control of the Insured – does not apply to personal property of directors, employees and visitors premises not owned by the insured (includes leased, rentals or loaned); vehicles not owned or used by insured whilst within a car park of the principle business.
• Professional Liability – liability arising out of the failure to render professional advice or service by the insured. However, this does not apply where a fee has not been charged and/or where medical advice by medical persons employed by the insured to provide first aid and other medical services on the insured premises.
• Property Damage to property rented to, leased to, occupied by, or used by, or in the care of, custody or control of the insured to the extent the insured is under contract to provide insurance thereof.
• Injury to any person or property damage arising from the ownership, possession or use by the insured of any vehicle whilst used in circumstances whereby such vehicle is required by law to be registered.

Other Important Notes-

• Work carried out on private land – landowners should have own insurance as well as landcare groups
• Excess is $1000 for each claim
• The definition for ‘Business’ under PPL does contain a specification that groups covered must not exceed $200,000 in Gross Revenue (this does not includes Grant monies). Please contact Darryl Ebenezer 07 3844 4032 for further information.
• PPL is a claims reported policy – meaning that the claim is made in 2016 to an incident relating to 2010 – the content of the policy in 2010 will be used.

VOLUNTEER ACCIDENT INSURANCE

The insurance covers and pays-

1. An agreed Lump Sum Benefits – Death/Capital Benefits (Age Limit 10-90).
2. Compensation for Income Earners – 85% of your weekly income subject to a maximum of $500 per week for each week of temporary total disablement not exceeding 104 weeks for any one event.

(Temporary Total disablement means where under the opinion of the doctor, the volunteer is unable to engage in their usual occupation or business duties, while also under the regular care of and acting in accordance with the instructions of a Doctor).

3. Emergency Home Help for Non Income Earners – 85% of the actual cost of domestic help (max $500 104 weeks)
4. Non-Medicare Medical Expenses – $2,000, $50 excess
5. Student Tutorial Benefit (Full time Students) – 85% of the actual cost of home tutorial expenses (max $500 – 104 weeks).
6. Funeral Benefits – up to $7500

Note that Injury does not include

1. sickness or illness or disease;
2. any pre-existing physical or congenital conditions (except illness or disease directly resulting from medical or surgical treatment rendered necessary by any Bodily Injury).

GAP Expenses are not covered by this policy!

‘Federal legislation that regulates health insurance provides that personal accident insurance coverage is not permitted to cover gaps in Medicare payments or any expenses that would normally be covered by Medicare of a private health insurer. I am also advised that it is standard in personal accident insurance coverage to provide cover for non Medicare medical expenses such as physiotherapists and chiropractors’

Source Letter from Minister for Finance, Natural Resources and the Arts 16/02/2012

The AON policy does cover non-Medicare medical expenses for Doctor, physician, surgeon, nurse, physiotherapist, chiropractor, osteopath, hospital or ambulance services for the following treatments

• Medical
• Surgical
• X Ray
• Chiropractor
• Osteopathic
• Physiotherapy
• Hospital
• Nursing Treatment

Other important points to note:-

• Accidents must be reported as soon as possible (Incident Form) – 12 months;
• Do not go to a private hospital if you do not have private health insurance;
• Keep QWaLC and insurers fully informed on travel requirements.(e.g. travel to capital city);
• For children under 10 there is no coverage. If an accident was to occur, compensation could or would be sought by the claimant under Public Liability. Under the PPL there is no age restriction.

ASSOCIATION LIABILITY This policy covers Professional Indemnity which covers Legal Liability to compensate Third Parties who have sustained financial loss due to breach or alleged breach of professional indemnity on part of their insured or their employees

Covers Directors /Officers Liability – Incurred due to a Breach or alleged breach of duty, misleading statement or wrongful act (as defined by the policy) by a director or officer acting in that capacity. This policy does not cover fines or penalties.

Sum Insured is $10 million for one claim or $20 million in the aggregate in any one year.

Fidelity Guarantee is $50,000 limit any one claim.

Excess: $2,000

Association is a Claims made policy which means when the claim is made relates to the policy taken out by the entity on that date (not to the year where the incident occurred).

Occupational health and safety FAQ’s

What is a business or undertaking?

BUSINESS – enterprises usually conducted with a view to making a profit and have a degree of of organisation, system and continuity.
UNDERTAKINGS – may have elements of organisation, systems and possibly continuity, but are usually not profit-making or commercial in nature.
Examples are a retailer, a manufacturing business, owner driver of their own business; a govt department or govt agency, local govt, school, churches – a not for organisation that engages and pays administrative staff.
A volunteer organisation owes duties to its volunteers under the WHS Act, where it

1. Conduct a business s or undertaking (whether not for profit or not), and
2. Is not a volunteer association

What does reasonably practical mean?

To determine what is reasonably practical in relation to managing risk, a person must weigh up

1. The likelihood of the hazard or risk occurring
2. The degree of harm that might result
3. What the person concerned knows or ought to know about the hazard or risk, and ways to eliminating or minimising the risk
4. The availability and suitability of ways to eliminate or minimise risk.
5. Updated 28th March 2012 – FOR MORE INOFRMATION, REFER TO AON PLOICY ON WWW.QWALC.ORG.AU

What is due diligence?

Due diligence requires officers to be proactive in ensuring that the corporation, club or association complies with its duty. In demonstrating due diligence, officers will need to show that they have taken reasonable steps to:-

• Acquire and update their knowledge of health and safety matters
• Understand the operations being carried out by the person conducting the business or undertaking in which they are employed, and the hazards and risk associated with the operations
• Ensure that the PCBU has and uses appropriate resources and processes to eliminate or minimise health and safety risks arising from work being done
• Ensure that the PCBU has appropriate processes in place to receive and respond promptly to information regarding incidents, hazards and risks
• Ensure that the PCBU has and uses processes for complying with duties or obligations un WHS Act 2011

Questions And Answers

1) Do Volunteering businesses have an obligation now?

In answering this question, a distinction needs to be made between a charitable or community service organisation that does volunteer work and a “volunteer association” .A charitable or community service organisation (such as the RSL or Blue Nurses) is usually incorporated and conducts its operations with a degree of organisation and repetition and therefore does conduct a business or undertaking.
On the other hand, A Volunteer Association means a groups of volunteers working together for one of more community purposes where none of the volunteers, whether alone or jointly, employs any person to carry out work for a volunteer association. Such a group is not regarded as PCBU and therefore the volunteer association does not have a duty a duty of a person conducting a business or undertaking.

2) Is a volunteer a worker?

Yes. The definition of a work includes a volunteer. Therefore, volunteer workers have the duty of workers under the new laws, for example, to take reasonable care for their own health and safety, and to comply with reasonable health and safety instructions.

3) When does your volunteer organisation owe duties under the WHA Act?

A volunteer organisation that conducts a business or undertaking owes duties to
(a) worker and others (Incl volunteers) who are engaged, or causes to be engaged by the organisation, and
(b) workers (Incl volunteers) whose activities in carrying out are influenced or directed by the organisation.
The volunteer organisation owes duties to the above workers while these workers are ‘at work’ in the business or undertaking.

4) What does a PCBU volunteer organisation need to comply with the WHS Act?

A volunteer organisation that is a PCBU has duties to ensure, so far as reasonably practicable:
(a) The health and safety of all workers while they are at work
(b) That they consult with all workers on health and safety matters
(c) That they provide the necessary information, training and supervision to all workers

5) Can a Volunteer be an Officer?

Yes, a volunteer can be an ‘officer’. If you are an officer of a PCBU and you are a volunteer, you must comply with your due diligence duties as an officer.
Updated 28th March 2012 – FOR MORE INOFRMATION, REFER TO AON PLOICY ON WWW.QWALC.ORG.AU

6) As a volunteer, can I be prosecuted under the WHS Act?

Volunteers who carry out work for PCBU are required to take reasonable care for their own health and safety and not to create risks to others. Like any other duty holders who do not comply with their duties under the WHS Act, workers, including volunteer workers, can be prosecuted for failing to comply to their duties.

7) If I am a volunteer officer, can I be prosecuted under the WHS Act?

No. A volunteer officer cannot be prosecuted for failing to comply with their officer duties under the WHS. This immunity from prosecution is designed to ensure that voluntary participation at the officer level is not discourages. A volunteer officer can however be prosecuted in their capacity as a worker if they fail to meet their duties as a worker.

8) Will I need to do a risk assessment of every job.

The new laws provide that a duty holder is required to eliminate risks to health and safety, so far as is reasonably practicable to eliminate risks to health and safety, the duty holder is required to minimise those risks so far as is reasonably practicable.

9) How do the proposed changes affect your business at large?

• The new laws require a PCBU to ensure as far as reasonably practicable
• The provision and maintenance of work environment without risks to health and safety
• The provision and maintenance of safe plant and structures
• The provision and maintenance of safe systems of work
• The safe use, handling, storage and transport of plant, structures and substances
• The provision of adequate facilities for the welfare at work in carrying out work for the business or undertaking, including ensuring access to those facilities
• The provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking
• That the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of business or undertaking.

10) What are the categories of offence?

There are 3 categories depending on the degree of seriousness or culpability involved:

Category 1 – the most serious breach, for a duty holder who recklessly endangers a person to risk of death or serious injury.

• Corporation – $3 million
• Individual as a PCBU or an officer: $600k/5 years jail
• Individual eg worker $300k/ 5 year jail

Category 2 – failure to comply with a health and safety duty that exposes a person to risk of death, serious injury of illness.

• Corporation – $1.5 million
• Individual as a PCBU or an officer: $300k
• Individual eg worker $150k

Category 3 – failure to comply with a health and safety duty.

• Corporation – $500k
• Individual as a PCBU or an officer: $100k
• Individual eg worker $50k

For more information about the WHS Act www.safeworkaustralia.gov

11) Specific inquires have been made relating to volunteers who have offered to use their own vessels to transport other volunteers to mangrove watch and other coastal monitoring sites. 

• if the boat is less than 6-8m
• if the boat driver is a member of a QWALC Member Group
• if the activity is not taking place on a regular basis
• if no money, including reimbursement, is changing hands (this may limit those volunteering their vessels, but it doesn’t rule out some still willing to do so regardless of personal costs)
• if there is no formal hiring of boat

Then, the boat owner/operator is most probably covered against claims made by other volunteers

Furthermore, Watercraft, Aircraft, Motor Vehicles used by landcare organisations should have their own policies in force which should include Liability coverage. It is important this is established from the outset

As for members of QWALC using their own Vessels for transporting other members, we would also suggest that the members should check with their Marine Insurers to ascertain in the policy what terms, conditions exclusions exist in their individual policy.

12) Regarding unicorporated groups

Scenario

XYZ Landcare Group Inc. is a large group in Brisbane. They are registered with QWaLC covered by the insurance provided. XYZ Landcare Group has a number of functions and activities for volunteers ranging from planting trees, to creek modification work, community information days, fund raising, policy lobbying, school interaction and creek works, corporate staff days, water quality monitoring, strategic planning across the catchment, bush care group establishment, operation of public education centre etc

One of the activities recently supported and developed by a member volunteer is a community garden which is in the catchment. XYZ Landcare Group manages the financial aspects and grant applications as well as having the group partake in public awareness days. The community garden is not incorporated and is not large enough to do so. It is a small community garden and activity that occurs is coordinated by one of the XYZ Landcare Group members. The aim of the activity is to connect urban dwellers with the land and food production, as well as an appreciation of natural resources.

Are the volunteers (members or non members) involved in this activity covered by the XYZ Landcare Group policies if supervised by an official member?

Answer

Yes, volunteers (members or non members) involved in community garden activities are be regarded as a sub-group of the incorporated entity, and therefore covered by insurance.

The Committee of the incorporated group must be satisfied that the activities carried out fall within the insurance policy.

To formalise the arrangement we would encourage the following to occur:-

1. The minutes of the ‘incorporate entity’ endorse or confirm the activities of the community garden group as being aligned to that of your organisation; and
2. That the un-incorporated group be provided or made aware of the OHS Policies and Procedures employed by the ‘incorporated’ entity – this could be officially done by a simple letter; and
3. The ‘incorporated entity’ be aware of when and where these activities occur – and an attendance registration sheet be made available to the ‘incorporated’ entity on request, and any incident be reported straight away to the ‘incorporated’ entity.

If the activities are supervised by the umbrella organisation (whom would be suitably aware of policies and procedures), and therefore would be considered as taking reasonable care of volunteers.

Frequently Asked Questions On Insurance

What is a ‘volunteer association’ under the model work health and safety laws?

A ‘volunteer association’ is defined as a group of volunteers working together for one or more community purposes where none of the volunteers (jointly or alone) employs any person to carry out work for the association. Volunteer organisations range from small informal community groups to large incorporated organisations. They may be unincorporated and incorporated associations. The WHS Act makes it clear that a ‘volunteer association’ does not conduct a business or undertaking and therefore does not owe duties under the WHS Act.

The main factors in determining whether a volunteer organisation is a ‘volunteer association’ are whether the organisation:

·        conducts a business or undertaking, or

·        its volunteers employ people to work for that business or undertaking.

If not, the volunteer association is not covered by the WHS Act and will not owe duties to its volunteers under it.

How do you tell if someone is ‘employed’ by a volunteer organisation?

An employee contributes labour and expertise to the business or undertaking of an employer and is usually employed to perform specific duties. Under Australian law, an ‘employee’ is usually (although not always) someone who has a ‘contract of service’ with their employer to perform such work.

‘Contract of service’ and ‘contract for services’ are common law phrases that are used to distinguish between the nature of services provided by a worker to an employer. A person who is employed usually performs work under a contract of service. There are many other indicators of whether a person is likely to be considered an employee. These include:

1. a.    whether there is an employment contract in place, even though a person may be paid a nominal amount in return for the work they are performing, this may still be sufficient to indicate that there is an employment contract in place
2. b.    the level of control or right to control that the employer may exercise such as over the manner in which the work is performed, the place of work and the hours of work
3. c.    whether the worker performs work for others (or is entitled to do so)
4. d.    whether the worker has a separate place of work and/or advertises their services to the world at large
5. e.    whether the worker provides and maintains significant tools or equipment
6. f.      whether the work can be delegated or subcontracted
7. g.    whether the putative employer has the right to suspend or dismiss the person engaged
8. h.    whether the worker is remunerated by periodic wage or salary
9. i.      whether the worker is provided with paid holidays or sick leave
10. j.      whether income tax is deducted from remuneration paid to the worker
11. k.    whether the work involves a profession, trade or distinct calling on the part if the person engaged, and
12. l.      whether the worker creates goodwill or saleable assets in the course of his or her work.

A contract for services however, refers to a relationship where a person provides services as an independent contractor. People who work under a contract for services generally have their own business, may provide their services to more than one client at a time and usually provide their own insurance cover. If so, they will be contractors and will not ‘employed’ by the volunteer organisation under the model WHS Act.

Are Catchment Groups covered for all Members?

Yes. The Catchment Group must have registered with QWALC. This registration is supplied to the insurance company. Certificate of Currencies are issued to our Groups on renewal of annual policy.

Are Catchment Groups covered for non-members and visitors?

Yes. Public Liability and Accident policy are constructed to protect all volunteers attending events authorised by the Group. It is important that a register of attendees at an event are recorded.

What are they covered for and to what financial extent?

Public Product Liability – this policy covers legal liability to pay (including legal expenses) to third parties in the event of the insured causing or being alleged to have caused injury death or loss or damage to property arising out of business operation or product.
Limit of Liability is $30 million. Within this policy there is also $250,000 for damage to property in care, custody or control of Registered Groups.

Of important consequence, I do draw your attention to the fact that this policy covers businesses earning less than $200,000 in Gross Revenue from commercial business transactions (this does not include grant monies received from Government).

Association – this policy is a combination of Professional Indemnity, Directors and Officers Liability Insurance & Employment Practice Liability and other sections as per policy document.
Limit of Liability is $10 Million.

Personal Accident/Disability/Volunteers Worker – provides weekly lump sum benefits for accidental death or injury to voluntary workers. A schedule is provided in the attached summary.

What activities or practices are not covered?

As defined quite broadly in the polices the business of the groups is defined as ‘monitoring/planning, development, promotions, demonstrations and implementation of improved land, water, vegetation management practices including field days, bus trips, camping trips, office occupancy, meetings, lectures, seminars, displays and all other activities.’
Personal Accident only covers volunteers from the ages 10 to 90.

Is there a clarification publication available and/or call centre?

I have attached a summary of the coverage and as well as a detailed overview of the Public Liability. As mentioned I am certainly looking at ways how the insurer can communicate better in outlining practical examples. I hope you will see an improvement in this in the coming months via our website.

Contact Details For Insurance Matters Are

Gary Mulvenna
P: 07 3223 7513
M: 0414 185 047 E: gary.mulvenna@aon.com

What insurance policies does QWaLC administer?

• Personal liability insurance.
• Public liability insurance.
• Association liability insurance.

How much does the insurance coverage cost?

The insurance is free. The Queensland Department of Natural Resources and Mines provides funds to provide the three insurance policies on behalf of QWaLC’s community NRM groups.

Is my group eligible for insurance?

Groups need to be members of and registered with QWaLC for insurance to receive the coverage. The coverage only applies to incorporated groups. Unincorporated groups can discuss their needs with QWaLC.

What is a declaration form?

The declaration form is a statement that a group ‘has taken reasonable steps’ to ensure that members are aware of the insurance policies.

What is a certificate of currency?

A certificate of currency is a document that shows that a group is currently insured. The certificate of currency shows a group’s policy number. It is provided by the insurance provider.

Groups need this document for various reasons, including funding applications, when hiring venues for meetings or events. QWaLC provides these to groups who register and respond to our annual survey.

Where is my group’s certificate of currency?

Once a group has signed and returned the survey form to QWaLC certificates will be issued.

Please be aware that this will be via email unless a hard copy is specifically requested.

Who is the insurance provider?

The insurance Broker is AON.

My group just registered with QWaLC. Where is our insurance?

If you have not received your policies within two weeks of being registered, please contact QWaLC.

Are members of the public (non-group members) covered if they are registered attendees at an event?

Yes, so long as they are supervised by an official member of the group at all times. If volunteers are left unsupervised (i.e. all official members leave the site), our insurance will no longer cover them.

Do properties that are hosting activities need to be owned by an official member of the group?

No, so long as a registered member of the group is present at all times. Once again, if any volunteers (non-members) are left unsupervised, our insurance will not cover them and any claims will need to be covered by the property owner.

How much does it cost to become incorporated?

As of 1 July 2010, the cost to incorporate your group is $120.45. The Office of Fair Trading manages these applications. Visit the Office of Fair Trading to access more information about becoming an incorporated association and download the forms.

Who is responsible for ‘okaying’ the use of new equipment or activities in a Landcare group?

All landcare group committees are responsible for the approval of landcare activities and projects and in ensuring that the necessary steps are taken in providing a safe working environment for its volunteers. This includes equipment, chemicals, first aide, induction, vehicles, contractors etc. For insurance purposes, if the committee authorises a landcare activity or equipment use then the insurance taken out by QWaLC on behalf of landcare groups will cover it. That means if an accident was to occur and a volunteer was injured there are 2 avenues of insurance:- 1) public liability if the injured party was to sue the landcare group or 2) volunteer accident which may provide some support in out of pocket ‘non Medicare medical expenses’.

On another level, if the accident was to be investigated by federal or state Workcover/WHS agencies and it was found that the landcare group did not take proper ‘due diligence’ in assessing the safety or qualifications in use of equipment than there is some ‘exposure’ relating to a fine or penalty. The Association Policy taken out by QWaLC may address this. I reason use the word ‘may’ is because it is really untested whether the insurance would cover this fine. The other consideration I think important to mention is that the WHS legislation does stipulate that if the organisation employs paid staff then there is a higher level of obligation required in the due diligence.

ABCD Landcare has the opportunity to lease a shed off the Council for no cost. We have already been using the shed for some time and store materials and equipment in it. There is no power or water, it is purely for storage. The lease agreement with Council requires that we have Public Liability Insurance.

Does QWALC insurance contracts cover this?

Yes the QWaLC Public Liability will cover any third party injury that may occur within the confines of the shed.

In relation to property insurance:

1) Within QWaLC’s Public Liability there is a property component ($250,000) which would cover any property your group might be hiring, borrowing or in the care of-  which is damaged whilst sitting in the shed.

2) QWaLC’s policy does not cover fire, floods, damage to shed…..etc. A separate policy would need to be taken here. If you need insurance here, let me know and we can put you in touch with a insurer, referred to us by AON

Information from AON regarding insurance

Association liability is a combination of Professional Indemnity, Directors & Officers Liability Insurance & Employment Practices Liability.

An Association Liability policy is a Claims Made & Notified Policy and under a claims made policy & notified policy any new claim or potental claim that is made against you must be lodged under to-day’s policy , not the policy in place when the mistake was initially made.

It is vitally important therefore that any new claim or complaint that comes to your attention is properly notified to your current insurer during the current policy(and definately before it expires).

We would therefore suggest that each of the member groups are aware of the above and report to Aon before expiry of the policy and any new claims or complaint that may result in a claim so as we may advise the insurer.

Claims made policies are not automatically “renewable” contracts such as Motor -Vehicle ,Liability,Fire & other policies — (Claims Reported Policies).

Claims made policies can only be arranged upon your completion of a fresh application form which forms the basis of your legal contract with your insurers.For example- If you let your policy expire on 31/10/2007 and do not effect a new policy &6 weeks later a claim is made against you for the work performed by your prior to 31/10/2007 (or at any time in the past ) you would have no curent policy to respond to the claim . All cover under each years policy ceases on the expiry date.

We therefore suggest that all insured groups & group members are made aware of the above information and report any new claims or complaints that may result in a claim immediately they become aware of the claim or complaint to Aon Risk Services Limited on Telephone (07) 32237400 and AON will advise the insurer.