Horrendous Risk in Taxis! Ted Version.
Geoff rang me today. He tells me that he had a discussion with David of the MoT regarding bailee drivers' insurance indemnity. According to Geoff, David is going to improve/rewrite the Regulation! I am sure it would be a good idea.
However, I am a healthy skeptic and I propose our committee to seriously consider about four letters I have suggested earlier.
--- In NSWTDAEXEC@yahoogroups.com, "union_faruque"
Re: Horrendous Risk in Taxis!
From: Minister Campbell's Office
Subject: RE: We have done our initial job in this regard. To: "Faruque Ahmed" union_faruque@... Received: Wednesday, 9 September, 2009, 8:47 AM
Thank you for your e-mail to the Hon David Campbell MP, Minister for Transport and Minister for the Illawarra.
Your correspondence has been noted and will be given all necessary attention.
Regards
Office of the Minister for Transport
Minister for the Illawarra
Ph: 9228 3777
Fx: 9228 3722
--- In NSWTDAEXEC@yahoogroups.com, "union_faruque"
Re: Horrendous Risk in Taxis!
Ted
Aren't you grateful about my vast information bank and contribution? What about Kingsley's " … The Taxi Determination Act … ? Are you familiar with such an Act? He is lawyer you know!
Horrendous Risk in Taxis!
Hey guys you all have a point and I need not repeat them, however I do no think its necessary to be critical of anybody we should all bind together in our efforts and get back to work.
Cheers Junior.
Sent via BlackBerry® from Vodafone
From: Ted Hirsch
Date: Wed, 9 Sep 2009 10:11:31 +1000
To:
Subject: Re: [NSWTDAEXEC] Re: Horrendous Risk in Taxis!
Committee members,
On this occasion, unusually, I agree totally with everything Peer writes below about Faruque, so I won't repeat it.
Faruque, this major problem is about ENFORCEMENT of EXISTING mandatory insurance cover by bailors of taxi drivers.
As stated very clearly in my posts on Exec and Forum Taxi insurance Loopholes a month ago.
The problem is most serious !
Heading off on your own you are simply confusing everyone and also giving the NSW TDA a poor image.
First consult the Committee openly and follow its decisions.
Then as a team get on with trying to solve the real problem !
Cheers,
Ted
(PS Anything written on Exec is ONLY for the Committee and NOT for the public unless agreed by the author. You seem to treat this with contempt.
2009/9/9 union_faruque <union_faruque@
From: Peer Lindholdt peer.lindholdt@
To: "Faruque Ahmed" <union_faruque@
Received: Wednesday, 9 September, 2009, 12:25 AM
Faruque,
as always you go of the rails. A taxi is already considered a `workplace' and has been for years. OH&S provisions are in place as far as practical. No doubt you won't be happy until every taxi has an armed security guard on board.
As I have said before, the present issue or campaign is about driver indemnity, not OH&S or Workcover. The issue is with the Minister for Transport and his departments and nobody else. Why the hell you would send letters to the Minister for Gambling, Sports and Recreation, the Attorney General and various members of Parliament I don't know. It makes you and therefore the NSW TDA look like ignorant fools.
Our present objective is as you write to remove any and all ambiguity with regards to Reg. 131 of the Passenger Transport Regulation. It is also, which you forgot to mention, about demanding that the MoT enforce it. However it can't do that unless somebody informs them that they are being breached.
As I have also said many times before, your method of campaigning, sending off absurd and confused letters to the wrong people is damaging any chance cabbies have of being taken serious be it by the regulators, the media or the industry. All you are doing is pissing a lot of people off for wasting their or their staff's time.
If you are the Secretary of the NSW TDA present yourself as such, stick to the issue and don't waffle on about auxiliary ones. Bureaucrats have limited intellect and if you bring more than one issue to their attention they get all confused. One step at the time.
I didn't watch "Custer's last stand" on ABC1 tonight, but I know he lost because he screwed up thinking he was smarter than Chief Sitting Bull. You suffer from the same illusion.
In case you don't know, Jeff Shaw is or was a partner or an associate of the Peoples Solicitors.
Anyway, for the time being please stick to Reg 131 and please write to the MoT Director General and the Transport Minister demanding that the regulation be clarified and enforced. The more the better. But, leave the NSW IRC and Workcover out of it as they are totally irrelevant to this issue.
Regards
PEER
--- In NSWTDAEXEC@yahoogro
Re: Horrendous Risk in Taxis!
We have done our initial job in this regard.
We can do better if we know why did the driver in question failed to win the case regarding insurance indemnity. The Peoples Solicitors (Peoples Enemy?), the Mexican Bandit (Jools), chest beating Jimmy and the driver in question may assist us if they want to. Nonetheless we move on.
Earlier I have written to the then Attorney General Jeff Shaw and NSW Workcover Authority to:
- Declare Taxi as a workplace like any other moving vessel like plane, train, ship, truck, bus, etc, etc.
- Ensure and enforce the Duty of Care Provision of the OH&SA in taxi the industry and in taxis.
The Workcover wrote to me to say that we are covered. The then Attorney General Jeff Shaw said in his letter, "…. due to bailor bailee relationship the isssue is not clear ….. ".
I therefore propose to the Committee that we write letters to the:
A. NSW Workcover Authority
B. NSW Attorney General
C. NSW Minister for Industrial Relations and
D. NSW Minister for Transport
Requesting them to
- Declare Taxi as a workplace like any other moving vessel like plane, train, ship, truck, bus, etc, etc.
- Ensure and enforce the Duty of Care Provision of the OH&SA in taxi industry and in taxis.
- In light of the recent Bailee Drivers' Insurance Indemnity Case mentioned above, remove any and all ambiguity in regards to indemnity of bailee drivers like all employees.
Please opine way freely. Together we win or loose. Please remember, what we are asking is merely a fundamental right of any workers like us.
From: Minister Greene's Office
Subject: RE: Horrendous Risk in Taxis!
To: "Faruque Ahmed"
Received: Monday, 7 September, 2009, 4:08 PM
Dear Mr. Ahmed
I refer to your email received by The Hon Kevin Greene MP, Minister for Gaming and Racing, Minister for Sport and Recreation, on 5 September 2009, in relation to Bailors and the horrendous risks in taxis.
This matter comes under the administration of The Hon David Campbell MP, Minister for Transport.
Accordingly, I have referred your email to Minister Campbell for consideration and reply to you direct.
Yours sincerely
Safa Zreika
Office of The Hon. Kevin Greene MP
Minister for Gaming and Racing /Minister for sport and Recreation
From: communityrelations@
Subject: Re: Horrendous Risk in Taxis!
To: "Faruque Ahmed" union_faruque@
Dear Faruque,
The Community Relations Unit has noted the contents of your email below. It is also noted that you have forwarded your email to various Members of Parliament.
The issues you have raised in relation to taxi drivers fall outside the portfolio responsibilities of the Attorney General. as such, the Department is unable to comment on your concerns.
I can only suggest that you seek and be guided by the advice of an independent legal representative. If you do not have or cannot afford a lawyer, you may
Your sincerely
Community Relations Unit
--- In Sydney_TaxiCorrupti
Re: Horrendous Risk in Taxis!
I think all of those links and references below are relevant. Any way, please opine away.
From: Peer Lindholdt peer.lindholdt@
To: "Faruque Ahmed" union_faruque@
Faruque,
Except for your link to the Passenger Transport Regulations Reg 22 and Reg 131, none of the others are relevant to the "Drivers to be indemnified" debate. For example the 70 page Operator's Guide to OH&S while interesting, addresses a completely different issue. All you are achieving by providing links which send your readers on a wild goose chase is to irritate them and lose their interest. That surely is not your objective.
What would be interesting to know is what the NSW TDA is doing to get the MoT to correct and enforce Reg 131 especially clause 2 and 5.
PEER
--- In Sydney_TaxiCorrupti
Re: Horrendous Risk in Taxis!
The issue is simple! The taxi drivers are basically workers and determined by many eminent judges.
I have many letters from various officials to demonstrate the "intent and purpose of the act and regulation ……" . Letters below are appended to do that job.
Mohammad bin Abdullah's Decision, Harvester Decision by Justice Higgins, Justice Beattie Report, Justice Edwards Report, Section 155 of the Workers' Compensation Act, PASSENGER TRANSPORT REGULATION 2007 - REG 22, TAXI-CAB OPERATOR ACCREDITATION PACKAGE MAY 2009 - Driver to be indemnified (clause 131), 7. Insurance, Worker's Compensation and Trauma Counselling by the NSW Taxi Industry Association and The Taxi Industry (Contract Drivers) Contract Determination 1984 clearly support minimum wage, workers compensation and full indemnity of all bailee taxi drivers.
From: Peer Lindholdt
To: "Faruque Ahmed"
Faruque,
Contrary to your claim, you are not a simple man, rather your are a very bright but complex one. You have fought harder and longer for the rights and welfare of taxi drivers than any man I know and for that I hold you in high regard but you persist in obfuscating your arguments with religious, historical and other issues irrelevant to the argument at hand, in this case the insurance scam perpetrated by operators in violation of their accreditation under the Passenger Transport Regulations and the Act. It has nothing to do with Mohammad bin Abdullah, Jesus Christ or Justice Higgins. It is strictly about Section 131 of the Passenger Transport Regulation – "Drivers to be indemnified" and its shabby construction.
If you could just learn to stick to one issue at the time and leave all the superfluous stuff out, you would have much greater impact and gain a lot more respect.
You are absolutely right; the MoT has been derelict in its duties when it comes to enforcing the conditions of operator accreditation with respect to driver indemnity and ensuring that a copy of a current insurance certificate is placed in all their taxis. The certificate or contract would provide all the necessary information about the operator and his insurer. You may be right that Kingsley screwed up in his handling of the case which launched this recent debate. But to make your point you don't need to provide 5000 words of mainly ancient historical diatribe and unconnected issues. Let's stick to the present objective, getting the MoT to do its duty and obey its statutory obligations on driver indemnity.
Regards
PEER
"union_faruque"
Horrendous Risk in Taxis!
According to customs and practice, all bailee taxi drivers are totally indemnified from any and all insurance claims. However, recently a magistrate delivered a very unusual and damaging verdict against a bailee taxi driver.
Why is it so?
Is it because some complacent MOT employees were derelict in their duty to maintain the status quo when new regulations were implemented?
Mohammad bin Abdullah to the NSW Ministry of Transport
Mohammad bin Abdullah's Decision: Workers must be paid and such a payment should be made before workers sweat dries out.
Harvester Decision by Justice Higgins: 'fair and reasonable wage' (minimum wage/workers must be paid).
Despite Mohammad bin Abdullah's Decision many people including feudal lords of
Since then the minimum wage/salary found its way in to society. Safe workplace and working conditions, duty of care provisions under the OH&SA too became a part of our life. Workers Compensation added to support workers' injuries, disablement and death. Indemnity of Workers from accidents is an essential part of life too. No one expects a worker to slave for the boss for a few generations due to an accident resulting in a millions of dollar damage.
The bailee taxi drivers are in essence workers and they are entitled to receive payments and other entitlements/
Mohammad bin Abdullah's Decision, Harvester Decision by Justice Higgins, Justice Beattie Report, Justice Edwards Report, Section 155 of the Workers' Compensation Act, PASSENGER TRANSPORT REGULATION 2007 - REG 22, TAXI-CAB OPERATOR ACCREDITATION PACKAGE MAY 2009 - Driver to be indemnified (clause 131), 7. Insurance, Worker's Compensation and Trauma Counselling by the NSW Taxi Industry Association and The Taxi Industry (Contract Drivers) Contract Determination 1984 clearly support minimum wage, workers compensation and full indemnity of all bailee taxi drivers.
Yet, I don't know why the Peoples Solicitors (Peoples Enemy?) lost the case about bailee drivers' insurance indemnity!
I think it is the responsibility of the Peoples Solicitors (Peoples Enemy?) to inform us on why he lost the case and he must repair the damage he had initiated in the first place.
--- In NSWTDAEXEC@yahoogro
Today Faruque rang me for the first time since 5Aug09.
He discussed at length the issue concerning many of us regarding bailees and bailors and insurance and asked me to read his 2 current emails.
I repeat what I said to him over the phone.
For us to solve the present issues Faruque must be accurate and precise.
And address the problems !
His old correspondence is fine, but is not the current issue.
The current issue is one of bailors NOT passing on and submitting a driver's accident report. As a consequence of this LOOPHOLE the driver is pursued for the claim !
This is clear from the emails on Forum and Exec ! And is very clearly stated in the Kingsley Liu letter Paragraph 7) below.
In the paras following 7) there seem to be also other permutations of these problems.
I repeat, if we are to find solutions, then address the problems!
Cheers,
Ted
--- In Sydney_TaxiCorrupti
Re: Do You Remember Bailees Must Be Indemnified?
Please examine these documents and I have many more documents from old days to prove the intent and purpose of the act.
NEW SOUTH WALES DEPARTMENT OF TRANSPORT
227 LLIZABEIH: Street
GPO
SYONEY 2OO1
TELEPHONE (02) 268 2800
FACSIMILE (02) 268 2900
Mr Faruque Ahmed
Vice President
Taxi Industry Services Association of NSW
ALEXANDRIA 2015
Dear Mr. Ahmed
I refer again to your letters of 6 December, 1994 regarding the availability of owner/operator details in taxis, and the non-compliance of Workers' Compensation and Third Party Property Damage requirements by taxi operators.
The proposal for taxi operator details to be available in taxis to benefit drivers was discussed by senior executives from this Department and the Taxi industry. They arranged for this matter to be raised at a Taxi Council meeting followed by a report to the Department. Arrangements are in hand to follow-up this issue.
Owner/Operators are required by law (Reg. 6 of the Passenger Transport Regulation) to maintain an insurance policy with a cover of at least $200,000 for damage ro property arising our, or the use of their taxi/s. This requirement is reinforced under the standards for taxi operators. Compliance with the provisions of Section 155 of the Workers' Compensation Act is also required under taxi operator standards.
The maximum penalty ($1,OOO for failing to carry Third Party Property Damage insurance can be imposed. ln addition, an operator's accreditation may be varied, suspended or cancelled for non-compliance with either one of these standards. For information I have attached a copy of the relevant section of the Passenger Transport Regulation, and an extract from the Taxi Service Operator Accreditation Standards
Operators suspected of carrying out sub-standard operations are audited by the Department, and in this regard I have arranged for the operator of taxi T. 688 to be investigated. Other operators will be investigated on receipt of full and factual information, which at least will include the registration numbers of the taxis concerned and a signed statement confirming non-compliance with the standards.
Yours sincerely
John McLoughlin
Manager
NEW SOUTH WALES DEPARTMENT OF TRANSPORT
GPO
FACSIMILE (02) 9268 2900
TELEPHONE (02) 9268 2800
Mr Faruque Ahmed
President
Taxi Drivers Section of the TWU
Marrickville 2204
Dear Mr. Ahmed
Thank you for your letter of 24th December 1997 about Bailee drivers being furnished information relating to accreditation and Insurance of the Bailor manager/operator.
The matter is receiving attention and l will be in touch with you again as early as practicable.
Yours sincerely
JOHN MCLOGHLIN
A/Executive Director Transport Services
Faruque Ahmed
President
Taxi Drivers Section of the T W U
Phone - (O2) 9564 1079, Fax - (O2) 9559 60g0
24 December 1997
Mr. John Mcloughlin
Executive Director
New South Wales Department of Transport
Level
Fax - (02) 9268 2900
Dear Mr. Mcloughlin
Further to my letter of 28.o2.94 and 6.12.94 I would like to inform you that your departmental Rules, Regulations and requirements do not compel bailors to display and provide their;
1. Full Name,
2. Copy of the Current DoT Accreditation,
3. Address and
4. A copy of Insurance details to bailees.
Absence of such information are facilitating lawlessness, tax evasion, possibly money laundering scheme in the taxi industry and most importantly the DoT and DIR Regulations are not serving their purpose at all. Also the OH&S Acts and workcover related Acts and Regulations are suffering a blow due to absence of such information.
Please note, the bailors always receive all of the information from bailees they engage or intend to engage but there are not enough good reasons available to justify them not to provide details of bailors or potential bailors to the same bailees,
I am confident your department will be in favor of enforcing the law rather than facilitating lawlessness and therefore I would like to request you again to remove the anomaly of the taxi industry by compelling bailors to provide their details to bailees as requested.
With thanks
Faruque Ahmed
--- In NSWTDAEXEC@yahoogro
Please find out the truth and accept the truth. Do not hide behind and do not suppress the truth.
--- In Sydney_TaxiCorrupti
What is the problem?
Which bailee driver lost an insurance indemnification case and why? What is the case number?
I have been assisting bailee drivers for the same without any problem.
From: kingsley liu
To: jimmy west ; tda tda
Sent: Monday, August 03, 2009 7:52 AM
Subject: RE: [NSWTDAFORUM] Re: [Taxi List] Re: A Serious Legal Question NSW
Australian Issue.
Dear Jimmy
Please help to put this up on NSWTDA Forum & other forums this has been discussed on.
The Peoples Solicitors legal team is having a meeting today in the afternoon with Jools and any other interested party in this problem. All parties are welcome to call Kingsley Liu with any suggestions.
The issue is the following
1) Peoples Solicitors have been defending the driver indemnity issue for the past two years pro-bono for dirvers except for minor processing and court fees (on the basis that the solicitor gains the cost orders if any)
2) We have won the last 5 matters because the operators and insurance companies were not willing to take us on.
3) The current case was a shock as magistrate accepted the argument that the operator was not liable vicariously. The opponents submission was a new line of approach by this particular insurance company. The Taxi Determination Act and Passanger Transport Act and the relevant clauses were cited in defence in an extensive 2 hour submissions by the Peoples Solicitors. We lost.
4) It may be that the MOT has to be informed before any statement of claim is issued. If so then we can work with the NSWTDA and ATDA to assist in the "early reporting or dob-in" program to fend off Statements of Claim. I hope that the MOT is co-operative.
5) Our legal team is anxious since we have 4 more cases of the same or similiar nature in
6) Jimmy, it is of no avail to provide any argument at the onset of the Statement of Claim to dismiss the claim. Once started the process has to proceed to hearing, where arguments are heard
7) The key problem appears that the operator may appear to put in an accident damage claim but the driver has no way of confirming it if the operators promise comes true or not. The driver has no power to get confirmation due to privacy restrictions.
We agree that despite the attempt for great regulations to protect the driver that the driver may be stuffed though this particular loop hole once the process has been originated in court. It also has complications
- A number of operators have several companies of choice and one can be faced with a liqudated or operator in receivership.
- The operator may elect to only pay for the damage ( and leave the driver to get hit with the legal and interest charges). The driver is not part of this negotiation process between the operator and the insurance company
Please be assured that this law firm is committed to finding a way (with all interested parties) to end this problem. There are clear limitations through current legal process. But we can do somethiing constructive through consultation and the political process and changing or amending the law.
To let you know, I currently have no confirmation of a claim that I was involved in aboout three years ago. ( Same boat ). The operator has since passed away.
Kingsley
--- In Sydney_TaxiCorrupti
Re: Do You Remember Bailees Must Be Indemnified?
I have been helping bailee taxi drivers since Adam was a boy regarding insurance and many other issues. None of us have to learn law from Kingsley Lew! I never considered him as a competent lawyer. May be he is a business man!
I was told, one of our committee members went down the tube because of insurance dispute! I am a bit surprised to hear this news because the member concerned never spoke to me. Anyway, what was the issue or point of contention and why has he lost is not known to me.
I am simple man and I will remain simple. I think Mike, Emil, myself and a few less smatter taxi drivers did some work to keep the law fair for workers long time ago. Nonetheless, I can not ignore Peer's Wisdom below!
Ted Hirsch
In the past month we have become aware of the loophole that leaves drivers liable for accident claims that should normally be covered by operator and his Insurance. Including a recent magistrate's decision !
Jimmy West helpfully provided a MoT name to contact.
Today I spoke to the person I suspect Jimmy was referring to. The correct name is David Tooze. He seems informed, businesslike and helpful !
He said for any drivers with such problems to contact him at MoT DIRECT on 9689 8829 ! He will need :
- The operator's name, number and details - if possible
- The taxi number
- Name of solicitor if driver has received a letter of demand.
Jimmy's other helpful information (his email FORUM Message #5194 Sun Aug 2, 2009 4:35 am) is confirmed from my discussion with David Tooze :
The MOT explained that as soon as the driver receives a Statement from the court or a solicitor he should immediately contact the MOT which then would pursue the operator / owner under the Act.
Cheers,
Ted
--- In Sydney_TaxiCorrupti
Do You Remember Bailees Must Be Indemnified?
I have successfully assisted too many taxi drivers from insurance bungles and claims. What is the issue may I ask?
PASSENGER TRANSPORT REGULATION 2007 - REG 22
Vehicle insurance
22 Vehicle insurance
(1) An accredited operator (unless otherwise notified in writing by the Director-General) must ensure that there is maintained one or more policies of insurance providing cover of at least $5,000,000 for each public passenger vehicle used to provide the relevant service against liability in respect of damage to property caused by or arising out of the use of the vehicle.
(2) The policies must be issued by a corporation authorised under the Insurance Act 1973 of the Commonwealth to carry on insurance business.
(3) Subclauses (1) and (2) do not apply to an accredited taxi-cab operator or an accredited private hire vehicle operator.
Note: See sections 32G and 39G of the Act for insurance requirements relating to taxi-cabs and private hire vehicles, respectively. See also clause 131 of this Regulation.
(4) An accredited operator must provide an authorised officer, on request, with evidence that the operator's policies of insurance are current.
Maximum penalty: 10 penalty units.
http://www.austlii.
MINISTRY OF TRANSPORT
TAXI-CAB OPERATOR ACCREDITATION PACKAGE MAY 2009
y. Driver to be indemnified (clause 131)
The operator must maintain policies of insurance ($5,000,000 for each vehicle) that indemnify the driver of a taxi-cab in relation to any third party property damage (including any excess payable on a claim) arising out of the use of the taxi-cab. Proof that the policies are current is to be kept in the taxi-cab at all times and must be presented to an authorised officer on request.
The policies must be maintained with a corporation authorised under the Insurance Act 1973 of the Commonwealth to carry on insurance business.
Page 17
The above is taken from the MoT's own publication. It would not be there unless it was an absolutely essential requirement under law. Yet, the supporting underlying legislation is not easy to find in the online Passenger Transport Act or the associated and relevant Regulations.
The following below is from the NSW Taxi council p/l document from it's own publication. It was probably initiated by the non-English speaking Faruque who is apparently some sort of pubic punching bag that any racist can make use of. Or so it seems.
7. Insurance, Worker's Compensation and Trauma Counselling
As a new Taxi Driver you must be aware of your responsibilities and rights regarding insurance, Worker's Compensation and trauma counselling.
Insurance
Your Taxi Operator must take out appropriate insurances to indemnify you (e.g. cover you) against all claims that come about if the taxi you are driving is involved in a motor accident. This means that whether you are at fault or not, all costs for the Taxi, other vehicles, property or persons who are injured must be covered.
Your Taxi Operator:
must maintain insurance policies and provide evidence of their currency
must indemnify the taxi driver in relation to any damage, including any excess payable on a claim, arising out of the use of the taxi cab.
As a taxi driver you
must be aware of the insurance policy indemnifying the driver
must know that the policy is current and is always carried in the taxi- cab at all times.
If you are aware of the
Who is responsible for risk management?
As a taxi operator, for OHS purposes, you count as the "employer" (yes, even with Bailee taxi drivers) and you are responsible for risk management. Everyone working in the business also has a responsibility to contribute to safety.
Worker's Compensation
Your Taxi Operator must take out Worker's Compensation Insurance if he or she has Bailee Taxi Drivers.
Worker's Compensation Insurance covers your injuries or health problems caused as a direct result of something that happens in the workplace, such as back injuries caused by lifting luggage.
(Note that Workers Compensation Insurance does not cover injuries caused by motor vehicle accidents that occur while driving the taxi. These are covered by separate motor vehicle insurances as described earlier)
Your responsibilities include:
You must report all accidents, injuries or safety related incidents to your Taxi Operator
You must seek appropriate medical treatment or assessment
You must co-operate with your Taxi Operator in following up any Worker's
Compensation claims
Source: http://www.nswtaxi.
Beside the indemnity clause of the NSW Passenger Transport Act
Good luck
--- On Wed, 8/7/09, Ted Hirsch
From: Ted Hirsch tedhirsch@..
To: "Faruque Ahmed" union_faruque@
Faruque,
As a result of your smooth talking and that of Mike tonight I am prepared to sacrifice this week and next week to work in consultation with you both to try to draft a NSW TDA submission to the AIRC by Thursday next.
However ONLY if you return the favor in exchange !
Namely that you provide TOMORROW for me the absolute legal proof that the operator must provide all insurance covers for the taxi against all accidents and that the driver is not responsible in any way for the insurances.
Please do NOT REFER me to look up various sources.
But you must email me the referenced extracts of ALL the SPECIFIC clauses from the relevant acts or determinations.
(It is an important and urgent matter.)
On Thursday I will then confirm my AIRC involvement with you.
Cheers,
Ted
--- In NSWTDAFORUM@
Attention Moderators due to the serious nature of this matter I am cross posting for the maximum exposure of the issue. I apologise in advance if you read this more than once on other forums.
There in lays the error, the defending lawyer IMHO was negligent in his duty to his client.
Indeed the Contract and the Act should have been cited at the initial court appearance and I feel confident if the matter goes before an appeal judge the matter will be thrown out.
The problem being is this driver is dirt poor and cannot afford another lawyer re cost of the appeal. He is barely surviving caring for an invalid daughter and our taxi income in NSW is miserable to say the least.
Consideration is being given to report the origional lawyer for his negligence to the Law Society and seeing if they can assist. The Law Society, I beleive would not be too impressed if the fool lawyer was publically named for his / her stupidity, thus one hopes they will come to the aid of the wronged party.
Jimmy.
From: usetobetaxidriver
To: Taxi-List@yahoogrou
Subject: [Taxi List] Re: A Serious Legal Question NSW Australian Issue.
--- In Taxi-List@yahoogrou
Despite the fact that the law and the contract you quote assign duties and liability to the taxi company and the insurance company, if the driver was named as a defendant and a judgment was entered against him, he is responsible to pay the judgment notwithstanding the law you cite. That law and contract should have been brought up to the court during trial in order to seek joinder of the insurance company as a third party defendant. It is clear that the taxi company is liable under the law but if you do not assert your legal right or entitlement during trial you have waived it. If the insurance company was not joined in the law suit, the judgment does not apply to them and the driver can not seek indemnity from them after the judgment has been entered. If the taxi company does not file a claim and the driver does not bring in the insurance company as a third party defendant, he is barred from seeking recovery after trial.
> Under our law, the owner/operator of the taxi is liable for all injury/damages occasioned by the said taxi. As shown by the previous postings and quoting from the Act this is so. Further more the contract of engagment of the bailee driver, known here as the Taxi Industry (Contract Drivers) Contract Determination Section 13 states and I quote:
> 13. Notification of Accidents The bailee shall forthwith notify the bailor of any accident or happening ofany loss or damage of or relating to the taxi cab and its equipment, andshall without delay give full information to the bailor as may be then, or thereafter, available as to the circumstances of such accident, loss or damage, and of all claims which may be made and/or threatened and where possible, the names and addresses of witnesses. The bailee shall not, excepta his own risk and expense, negotiate, pay, settle, admit or repudiate any claim made by any person arising out such accident, loss or damage and the bailee shall do all things reasonably necessary to assist the bailor in the prosecution, by the bailor, of any proceedings to enforce the bailor's rights to recover compensation for such accident, loss or damage. Any reasonable cost to the bailee involved in such actions shall be paid by the bailor. Definition: Bailee: Contract Driver Bailor: The owner / operator of the taxi who has to have insurance covering all eventualities and indemnify the bailee driver against any actions or expences demanded againt him or his property. The guide lines and regulations are clear cut, and how the judge could award damages against the bailee driver would in my opinion was a matter of expediency for the court. It now remains for the adjuged party to cross sue the bailor for his costs in this matter. Herein lays the dilema the bailee taxi driver lacks the funds to engage a competant lawyer to prosecute the said recovery suit. The bailee driver is left in the lurch and out of pocket whilst his bailor is laughing all the way to his bank. The plaintif sued two (2) defendants. Judgment was successful against the second defendant.If the 2nd defendant fails to pay within the time period specified by the court or applies for a stay of execution by way of a cross suit against his bailor, then a writ of execution will be issued against his goods and chattels or a petition in Bankruptcy fieled. It remains to be seen if the plaintif in this instance will get anything at all as the Bankruptcy Act in
From: usetobetaxidriver > To: Taxi-List@yahoogrou
Sent: Saturday, August 01, 2009 1:46 PM
Subject: [Taxi List] Re: A Serious Legal Question NSW Australian Issue.
--- In Taxi-List@yahoogrou
Thank you,
This is not the issue,
> Do I understand correctly that the injured party made a demand for compensation for damages and the cab company refused to file a claim with the insurance so the injured party filed a suit against the driver and won a judgment? If so the driver is screwed if he
did not join (bring in) the insurance company as a third-party defendant during the law suit by the injured party.
> A party injured by the negligence of a driver (plaintiff) may file suit against the driver (defendant) regardless of whether an insurance company is responsible to the driver to indemnify him > or not. In fact, it is sometimes the case that two drivers were at fault but the injured party only brings suit against one driver. If you are named as a defendant it is your responsibility to join (add on) any other party that may also be at fault or owes you indemnity. If you don't bring in the other party and a judgment is entered against you, you alone will be held responsible by the court to pay the judgment. You may not later bring suit against the insurance company to indemnify you for the amount of the judgment – you lost that right by not joining them in the action.
> This rule of law is predicated on the desire to promote judicial efficiency. If trial is held on a claim of damages, the law requires that all claims, cross-claims, or third-party claims arising from the incident must be brought by any person party or they lose the right to bring them later. This is to prevent multiple claims arising from the same incident from being litigated in several different trials. Since this is a common law principle, I'm pretty sure it applies in Australian courts.
Peer's Wisdom Re: FLOG Re: Bailees Must Be Indemnified
Jimmy wrote: Re: [ozcabs] FLOG Re: Bailees Must Be Indemnified
So, this is all old stuff. A good TDA secretary should know all this. The A.T.D.A..has already sent their final submission to A.I.R.C. Its on our website www.tda.net.
Jimmy
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