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Richard Clayton

Partner

Brisbane

+61 7 3225 5931

Richard is a CTP specialist who acts on behalf of major CTP insurers, defending a range of claims from catastrophic injury claims to more routine based claims.

He has experience in unlitigated and litigated claims, having successfully defended claims on appeal to the Queensland Court of Appeal and to the High Court.

He has successfully resolved hundreds of CTP claims during the past 15 years and, in the process, has saved his clients millions of dollars by taking a proactive approach in claims management.

EXPERIENCE & EXPERTISE

Richard was admitted as a solicitor in December 1992, and a solicitor in the High Court of Australia in January 1993.

In the late 1990s, Richard commenced specialising in litigation, for both government and private legal firms in the UK and in Australia.

Prior to commencing with the firm, Richard gained experience as a liability lawyer at a large Brisbane based legal firm specialising in public liability work.

Since joining Moray & Agnew in May 2005, Richard has specialised in CTP. He regularly acts on behalf of major licenced CTP insurers, advising on unlitigated and litigated claims.

Richard has successfully resolved hundreds of claims during his time at Moray & Agnew, including successfully defending four matters which went to trial, as well as successfully defending one matter that was the subject of a High Court special leave application, which was subsequently refused.

Richard has a proactive approach to claims management, and seeks early resolution where liability is not in dispute. He has a track record of settling the majority of his claims at or prior to a compulsory conference in the pre litigated phase, thereby avoiding costs of formal legal proceedings. Richard’s claims management style means that less than 1% of the claims he has managed during his legal career have proceeded to trial.

ACCOMPLISHMENTS

Notable achievements during Richard’s legal career include:

  • Advising a CTP client on a claim involving an infant claimant sustaining an alleged brain injury whilst riding a pushbike. Richard provided specific advice concerning whether the claim was statute barred or not, including whether s29 of the Limitation of Actions Act 1974 (Qld) applied. Richard also provided an extensive advice on liability, involving engineering evidence and quantum.
  • Advising CTP clients on claims involving fraud of the part of the plaintiff. In one such claim, Richard successfully obtained an ex parte order suppressing damaging evidence of the plaintiff’s activities prior to trial. This resulted in Richard later obtaining a $Nil ‘walk away’ settlement on behalf of one of his clients prior to trial.
  • Advising CTP clients on the applicability of the National Injury Insurance Scheme (Queensland) Act 2016 (‘NIIS’) to claims. In one such claim, Richard had to determine whether the NIIS applied to a claim involving a claimant who had sustained an alleged spinal cord injury in an accident. This required Richard to obtain evidence from an expert doctor to determine whether the claimant fulfilled the ‘eligibility criteria for a permanent spinal cord injury’ as outlined in s5 of the NIIS Regulation.
  • Advising CTP clients on their obligations to provide rehabilitation services in accordance with s51 of the Motor Accident Insurance Act 1994 (Qld) (‘MAIA’), including providing suitable strategies to avoid applications being brought by claimants seeking proposed orders that rehabilitation services be provided.
  • Richard has a special interest in claims where liability is in dispute. This is with a view of assisting CTP clients driving down claims costs. Examples of such claims include:
    • Where the facts leading up to the cause of the alleged accident were in dispute, involving a concertina collision, requiring Richard to advise on medical causation vis a vis each of the subject collisions
    • Numerous claims involving alcohol, illicit drugs, and seatbelt issues, whereby Richard has advised CTP clients concerning available statutory defences, namely s13, s14, ss4749 and s24 of the Civil Liability Act 2003 (Qld), including relevant common law defences
    • Claims involving ‘inevitable accident’ scenarios, whereby Richard had advised his CTP clients on whether such factual scenarios would cause a court to uphold that defence
    • Claims where the claimant / plaintiff only complained of accident related injuries many months / years after the date of the accident and had later asserted that such injuries were accident related
    • A claim involving a cyclist admitting he failed to look and rode out in front of an insured truck that subsequently ran over him
    • A claim involving a pillion passenger of a motorcycle who had admitted to police that they did not hold onto the insured driver / the motorcycle, in circumstances where the plaintiff allegedly sustained injury
    • A claim where the accident was not witnessed by anyone, in circumstances where the claimant asserted he sustained various injuries after the insured vehicle had run over his foot and he was allegedly thrown backwards
    • A CTP claim involving a plaintiff who was ‘rear ended’ by an alleged unidentified vehicle at a ‘drive through’ business. Richard successfully argued that the plaintiff failed to undertake ‘proper inquiry and search’ in line with s31(2) of the MAIA. See Murray v Nominal Defendant [2014] QDC 144.
  • Richard has advised several CTP clients on claims where policy indemnity is in dispute. An example includes a claim where a purported insured vehicle was in the process of being stolen, causing the plaintiff to allegedly sustain injuries when attempting to retrieve the vehicle.
  • Richard has provided specific advice to a CTP client regarding whether there is an obligation on a CTP insurer at common law, to notify a purported insured driver where CTP policy indemnity is in dispute. In particular, whether the duty of ‘utmost good faith’ applies in that instance.
  • Richard has been successful in exercising recovery rights on behalf of numerous CTP clients pursuant to s58(4) of the MAIA against vehicle repairers, resulting in his clients bearing $Nil exposure in their claims
  • Richard has advised a CTP client on a dependency claim brought by two surviving children, which involved reviewing case law on circumstances where the deceased had relationships with several partners, which the claimant’s lawyers asserted had increased the claims for both past and future loss of services. The claim was subsequently settled prior to trial below the reserve estimate.
  • Richard has advised a CTP client concerning a claimant who used the vehicle as a weapon in a ‘road rage’ incident. During the chaotic incident, the claimant was unintentionally injured by the insured driver, and Richard’s advice to his client focused on the reduced standard of care owed by the insured driver to the claimant. Richard’s investigations enabled him to subsequently settle the claim for a nominal sum.
  • Richard had advised a CTP client concerning an infant claimant cyclist who was run over by a tourist bus. Richard’s advice to his client assisted in settling the claim via sanction for $2.1 million.
  • Richard assisted in a tetraplegic claim, including attending a compulsory conference which settled in the sum of $7 million
  • Richard has provided advice to his CTP clients on several ‘driver v driver’ claims, where both insured drivers in the accident involved the same CTP insurer.

Richard has successfully ran at trial the following four reported decisions:

  • Murray v Nominal Defendant [2014] QDC 144
  • Price v Southern Cross Television (TNT9) Pty Ltd & Anor (2014) 25 Tas R 133
  • Smith v Body Corporate for Professional Suites Community Title Scheme 14487 [2013] QCA 80 (Special leave application to the High Court was later refused)
  • Graham & Ors v Welch [2012] QCA 282.

RECOGNITION

Ranked as a Recommended Lawyer – Compulsory Third Party (Defendant) in Queensland by Doyle’s Guide since 2018.

Publication and Papers

The most recent topics that Richard has presented on include:

  • Servitium and Business Claims for Damages – 26 August 2019
  • Zavodny v Couper & QBE [2018] QSC 238 – 30 July 2019
  • Caffrey v AAI Limited [2019] QSC 7 – Nervous Shock – What impact the decision may have on the CTP Scheme – 7 March 2019.

Expertise

Qualifications

  • Bachelor of Laws, Queensland University of Technology 

Memberships

  • Australian Insurance Law Association
  • Queensland Law Society
  • Women in Insurance