Wilson Yap

Consultant

WorkCover

I came from Malaysia to gain a better education here in Melbourne. I graduated from Monash University with a combined Bachelor of Commerce and Laws degrees in 1997 and started with Wisewoulds in 1998. I am proud to say my entire adult working life has been spent with Wisewoulds.

I act on behalf of the Victorian WorkCover Authority and my technical expertise is predominantly in s138 recovery litigation.

Throughout the years, I have been involved in various cases of significance for the Victorian WorkCover Authority, including:

• the first ever s138 recovery against co-workers for workplace assault, bullying and harassment in 2000;
• the leading s138 recovery case of VWA v Esso where the mechanics of how s138 recovery works was determined in the Supreme Court, Court of Appeal and the High Court; and where the VWA's entitlement to interest in s138 recoveries litigation was ultimately determined favourably in the Hight Court;
• the case of VWA v Kenman Kandy and VWA v AV Jennings in the County Court and the Court of Appeal where it was determined that the relevant version of s138 to be applied is the one as at the date of injury. Prior to this case there were a multitude of ways where one could argue which version of s138 applies;
• the case of VWA v Orientstar in the Supreme Court and the Court of Appeal which paved the way for the VWA to pursue s138 recovery and contribution proceedings against overseas tortfeasors.

Procuring witnesses, especially disinterested workers, to assist in s138 recovery matters is a challenging task which requires tactful approaches. I recall securing a particularly disinterested worker for trial (without a subpoena) where all investigators and process servers have failed. This is one of the many interesting aspects of s138 litigation.

S138 litigation is primarily personal injuries litigation. I have been involved with making assessments involving various degrees of injuries including:

• psychiatric injuries and stress (eg. those caused primarily as a result of work or secondary to other bodily injuries; and which some are complicated by alcohol abuse or a relapse of previous trauma);
• amputation (eg. those usually caused as a result of entanglement in or by operation of industrial machines);
• paraplegia (eg. those caused by falling from height, vehicle accidents or other very traumatic accidents);
• brain damage (eg. those caused by traumatic accidents such as major vehicle accidents, or non-traumatic incidents such as chemical exposure);
• grievous bodily injuries (eg. these are mainly multiple injuries caused by a traumatic incidents such as a transportable home collapsing on workers working underneath it); and
• death (eg. those caused by electrocution, concrete wall collapse or other major accidents).

I have also analysed various incidents which give rise to these injuries such as cases involving:

• product liability (eg. users injured by electrical safety breakers, machines, power tools, ladders);
• maritime accidents (eg. injuries caused during passenger carriage, stevedoring);
• aviation accidents (eg. passenger injuries/death occurring during flights);
• major industrial accidents (eg. where a number of people were injured as a result of an electrical arching in an electrical switchboard in a shopping centre);
• electrocution (eg. linesmen injured whilst performing high voltage work);
• engineering designs (eg. collapse of retaining wall in a mine);
• explosion and fires (eg. petrol station flash fires, chemical explosions);
• workplace assault, bullying and harassment (eg. apprentices and new employees being subjected to unorthodox workplace "initiation" practices); and
• multiple tortfeasors (eg. up to ten tortfeasors from a municipal council and surveyor to the designer and manufacturer of a walkway which collapsed).

Statutory insurance litigation invariably involves some degree of policy construction and contractual interpretation. I have been involved in matters where:

• the WorkCover statutory insurance policy was analysed and constructed in favour of the VWA (eg. VWA v Esso, VWA v Stawell Gold Mines);
• a number of public liability insurance policy were interpreted in a manner allowing the VWA to achieve recovery against a tortfeasor which would otherwise have indemnity denied by its insurer (eg. VWA v Stawell Gold Mines);
• service agreements between multiple tortfeasors were interpreted to determine the nature and extent of liability of each party.