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Courts lower the bar on insurance ‘claims’ - Corporate Risk and Insurance Update - August 2010
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39KB
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A number of recent decisions have considered what constitutes a ‘claim’, both as against an insured or under a policy. The trend in these cases has been to lower the bar so as to allow claims against the insurer to proceed
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Consequential Loss: NSW Court of Appeal Agrees with Peerless - Building and Construction Update - May 2010
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23KB
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The NSW Court of Appeal’s decision in Allianz v Waterbrook [2009] NSWCA 224 has confirmed the Victorian Court of Appeal’s approach to the interpretation of “consequential loss” provisions in contracts taken in Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd [2008] VSCA 26 (Peerless). The decision confirms that “consequential loss” should be given its “ordinary and natural” meaning. Prior to this decision, there had been considerable debate in legal circles as to whether New South Wales courts would follow the Victorian courts lead on this issue.
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Scott Samways v WorkCover Queensland and De Luca Properties and Lynsha [2010] QSC 127 - Corporate Risk and Insurance Update - May 2010
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25KB
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This single judge (Applegarth J) decision of the Queensland Supreme Court concerns the commonly encountered considerations of duty of care and liability of those working on a construction site, as well as the application of a contractual indemnity between the principal contractor and a subcontractor
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The End of Oil Basins - NSW Rekindles Love Affair with Arbitration - Corporate Risk and Insurance Update - April 2010
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37KB
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In 2008 the Victorian Court of Appeal handed down a judgment that arguably equated the arbitral tribunal’s duty to give reasons under the uniform Commercial Arbitration Acts with that of a judge (Oil Basins Ltd v BHP Billiton Ltd [2007] VSCA 255; 18 VR 346) (Oil Basins)
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So I Don’t Need to Prove What My Insurance Policy Says? Corporate Risk and Insurance Update - April 2010
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32KB
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Wallaby Grip Limited v QBE Insurance (Australia) Limited; Stewart v QBE Insurance (Australia) Limited [2010] HCA 9 - Last week the High Court of Australia (HCA) reconsidered the NSW Court of Appeal’s decision in QBE Insurance (Australia) Ltd v Stewart [2009] NSWCA 66 (NSWCA). Allowing the appeal, the HCA determined that in the absence of a policy in evidence, the insurer bears the onus of proving any limitations on cover.
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Taming the Behemoth: APRA Seeks Consultation on Supervising Conglomerate Groups - Corporate Risk and Insurance Update - March 2010
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30KB
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Taming the behemoth: APRA seeks consultation on supervising conglomerate groups
By Greg Moss and Ray Giblett of Gadens Lawyers, Sydney
On 18 March 2010, the Australian Prudential Regulation Authority (APRA) released a discussion paper containing proposals for a new ‘level 3 supervision framework’ (Framework).
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Take Two - Insurance Contracts Act Amendment Bill and Unfair Terms in Insurance Contracts: a Brave New World of Insurance? Corporate Risk and Insurance Update - March 2010
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46KB
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On 12 February 2007, following consideration of the Cameron-Milne Report (Report), Treasury released the exposure draft Insurance Contracts Amendment Bill 2007 (the Draft) for public comment. Finally, on 17 March 2010 (over 3 years later) the Insurance Contracts Amendment Bill 2010 (the Bill) has been introduced into Federal Parliament
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APRA Enhances Prudential Framework for Life Insurers - Corporate Risk and Insurance Update - March 2010
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29KB
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Four new prudential standards were released on 4 March 2010 (the Standards), taking effect from 1 July 2010.
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Tort - Gibbings-Johns v Corliss [2010] QSC 49
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22KB
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Tort – Measure and Remoteness of Damages for Personal Injuries – General Principles
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ASIC Review Leads to a Re-think on Ratings Disclosure - Corporate Risk and Insurance Update - February 2010
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30KB
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By Greg Moss and Ray Giblett of Gadens Lawyers, Sydney
Recent missives by the Australian Securities & Investments Commission (ASIC) may prompt a re-think of ratings disclosure by Credit Rating Agencies (CRA) and issuers of financial products to retail clients.
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Proposed regulatory amendments to increase APRA's powers in respect of general and life insurers - Corporate Risk and Insurance Update - January 2010
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32KB
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Proposed changes to Australia’s insurance regulatory regime will enhance the powers of the Australian Prudential Regulatory Authority (APRA), including granting APRA the power to effectively force insurers to recapitalise and provide self-incriminating material.
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Licensed Premises’ Duty of Care to Patrons. Drink…Drunk…Your Decision…Your Responsibility! - Corporate Risk and Insurance Update - December 2009
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46KB
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In Scott the High Court of Australia (HCA) found that a hotel licensee did not owe a duty to telephone an inebriated patron’s wife to collect him from licensed premises. The Court also found that the licensee did not owe a duty to prevent the inebriated patron from riding his wife’s motorcycle home.
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'Other Insurance': High Court Affirms Narrow Application of s.45 of the Insurance Contracts Act 1984 (Cth) - Corporate Risk and Insurance Update - December 2009
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38KB
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The High Court of Australia (HCA) has handed down its much anticipated decision in Zurich Australian Insurance Ltd v Metals & Minerals Insurance Pte Ltd [2009] HCA 50, dismissing the appeal and applying a strict interpretation of Section 45 of the Insurance Contracts Act 1984 (Cth) (s.45)
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Corporate Risk and Insurance Update - December 2009
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36KB
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Licensees’ duty of care to patrons - High Court of Australia reigns in the scope of ‘Duty of Care’ in Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48
By Greg Moss of Gadens Lawyers, Sydney
Having recently ruled that a Tasmanian publican was not liable for failing to prevent an inebriated patron from riding his motorcycle home, the High Court of Australia (HCA) has handed down its decision in Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 (Adeels).
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Protecting Policyholders - Financial Claims Scheme Modified - How the Changes Affect You - Corporate Risk and Insurance Update - November 2009
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29KB
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By Ray Giblett and Greg Moss of Gadens Lawyers, Sydney
The Insurance Amendment Regulations 2009 (No.1) (Regulations) were released on 29 October 2009. The Regulations amend the Financial Claims Scheme (FCS), first established in October 2008 following the recommendations of the HIH Royal Commission. The FCS seeks to protect policyholders (of certain classes) who make claims on a general insurance policy in a situation where the insurance company is insolvent.
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Terrorism Insurance Scheme Reviewed Against the Backdrop of the Global Financial Crisis - Corporate Risk and Insurance Update - October 2009
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27KB
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The Commonwealth Treasury released its report yesterday on the 2009 review of the Terrorism Insurance Act 2003 (Act). The report recommends that Australia's terrorism insurance scheme (Scheme) continue for at least another three years. By Ray Giblett and Greg Moss of Gadens Lawyers, Sydney.
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Dual Insurance, Contribution and Co-ordinate Liabilities. The Merry-Go-Round Stops Spinning – is this the end of the HIH Claims Support Saga? - Corporate Risk and Insurance Update - October 2009
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40KB
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The origins of the doctrine of contribution can be traced back to the second half of the 18th century and, although not quite as old, the battle in HIH Claims Support Ltd v Insurance Australia Ltd [2009] VSC 434 seems to have also spanned an age.
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Federal Court Considers Business Interruption Policy: the Perils of Poor Policy Drafting - Tropical Reef Shipyard Pty Ltd v QBE Insurance (Australia) Limited [2009] FCA 1088 - Corporate Risk and Insurance Update - October 2009
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36KB
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The recent Federal Court decision of Tropical Reef Shipyard Pty Ltd v QBE Insurance (Australia) Limited examined the operation of a business interruption policy and found that the insurer was unable to escape the clear meaning of the policy, with costly results. The dispute, amongst other things, concerned the proper construction of the loss calculations.
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Selected Seeds Pty Ltd v QBEMM Pty Ltd and QBE Insurance ( Australia ) Ltd [2009] QCA 286 - Corporate Risk and Insurance Update - September 2009
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23KB
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The Queensland Court of Appeal has interpreted a broadform liability insurance policy, provided by QBE to its insured Selected Seeds Pty Ltd, seed merchants. This occurred in the context of a claim by subsequent purchasers of grass seeds who suffered loss and damage because the seeds were a different type.
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Corporate Risk and Insurance Update - September 2009
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24KB
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Non-government schools as authorities for the purposes of the Civil Liability Act 2002. By Wendy Blacker and Greg Moss of Gadens Lawyers, Sydney
Changes have been made to the law in NSW, which affects non-government schools, in relation to the payment of any potential damages in a lawsuit (in a civil liability or common law claim). The changes have seen the Civil Liability Regulation 2009 (NSW) amend the current law (the Civil Liability Act 2002 (NSW)) to now categorise certain non-government schools as a “public or other authority”.
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Australasian Medical Insurance Limited & Anor v CGU Insurance Limited (2009) QSC 235 - Corporate Risk and Insurance Update - September 2009
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20KB
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A recent Queensland Supreme Court decision exemplifies how some careful preparation of a policy should be encouraged so as to avoid time consuming and expensive arguments about the scope of a policy from arising.
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Corporate Risk and Insurance Update - August 2009
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40KB
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The case of the flying tissue box – Zurich Australian Insurance Limited v Raman; Gyimah v Mackay [2009] NSWCA – the dangers of unsafe evidence. By Con Kakakios and Ray Giblett of Gadens Lawyers, Sydney.
A recent Court of Appeal decision examined, amongst other things, whether the trial judge wrongly placed significant weight on photographic evidence of tissues and a tissue box in a taxi that was involved in an incident with a passenger.
The Court of Appeal decision in Zurich Australian Insurance Limited v Raman; Gyimah v Mackay [2009] NSWCA 221 highlights the dangers of a Court accepting expert evidence purely based on facts given by lay witnesses without any independent analysis and drawing unsafe inferences when faced with entirely different versions of the facts.
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Corporate Risk and Insurance Update - August 2009
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33KB
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The High Court to have the final say in relation to ‘other insurance’ provisions. By Rory O'Connor and Ray Giblett of Gadens Lawyers, Sydney. Section 45 of the Insurance Contracts Act 1984 (Cth) regulates the enforceability of what are known as ‘other insurance’ provisions. An ‘other insurance’ provision is a provision in a contract of insurance that excludes cover to an insured for a liability in respect of which the insured is covered under some other contract of insurance. read more...
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Swine Flu – Are You Covered? - Corporate Risk and Insurance Update - June 2009
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32KB
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With the instances of H1N1 Influenza 09 (Human Swine Influenza) increasing by the day, business management are advised to prepare continuity plans to deal with the possible impact on their business and to ensure sustainability. The disease has the potential to affect the largest of organisations down to the sole trader. There is the potential for serious losses in productivity if staff and business operations are exposed to the illness.
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Lost your insurance policy? Who has to prove what it said? QBE Insurance (Australia) Ltd v Stewart [2009] NSWCA 66 - Corporate Risk and Insurance Update - April 2009
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26KB
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If the precise terms of an insurance policy are not in evidence, who bears the onus of proving what it said? The NSW Court of Appeal recently considered this issue in determining the extent of the liability of an insurer. It found that the question is governed by ordinary contractual principles, namely the party asserting an agreement must prove it. However, there may be exceptions.
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Phillips v ING Life Limited [2009] FCA 283 - April 2009
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35KB
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You might not know its name but you should have told us anyway! A recent Federal Court decision highlights the importance of full disclosure in the context of life insurance even when the precise terminology used to describe the insured’s medical condition is unknown by them. The court considered the ‘knowledge’ required to be disclosed by an insured and whether a breach of disclosure requirements also constituted a misrepresentation. It also considered when an insurer waived the duty of disclosure by its conduct and the operation of s29 of the Insurance Contracts Act (1984) (Act) where an insurer reduces the amount payable under the policy rather than avoiding the policy altogether.
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General Update - March 2009
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30KB
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Corporate risks in a GFC world - "Red Flag Issues". The global financial crisis (GFC) will have a significant impact on all businesses.
“Never let a serious crisis go to waste. What I mean by that is that it is an opportunity to do things you could not do before.”
Although there is argument about who was the author of this quote, the fact is that for most companies the GFC provides an opportunity for rebirth, doing things better, and avoiding mistakes of the past.
Part of this opportunity is to better manage corporate risk. Gadens Lawyers can provide very valuable, cost effective assistance in this process through our specific "Red Flag" review program we have developed for the GFC climate.
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Corporate Risk and Insurance Update - March 2009
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34KB
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That wasn’t supposed to be covered! General Reinsurance Australia Ltd v HIH Casualty & General Insurance Limited (in liquidation) [2009] NSWCA 22 - a cautionary tale for reinsurers. Reinsurance treaties often employ general language and avoid complicated drafting, preferring to rely on the common understanding of the parties and the insurance industry in general.
A recent decision demonstrates the differences in opinion that may arise between reinsurers and cedants, and the risks faced by reinsurers in relying on vague terminology and appeals to common industry understandings. It also highlights the importance of good communication, which in this instance could possibly have avoided years of litigation.
This update contains a brief discussion of some of the issues and policy nuances dealt with in the case.
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Corporate Risk and Insurance Update - January 2009
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32KB
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Fighting contagious issues: APRA releases new prudential framework for general insurance groups - Just in time for Christmas (17 December 2008), the Australian Prudential Regulation Authority (APRA) released its finalised prudential standards to apply to all Level 2 insurers. The standards aim to ensure that insurance groups are financially sound and that the financial soundness of insurers within a group is not compromised by group inter-relationships.
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Corporate Risk and Insurance - October 2008
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32KB
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My PI Policy will cover me for defective works, won’t it? Think again: the saga of Sydney’s third runway.
A recent Court of Appeal decision has highlighted the limitations of professional indemnity policies in the building and construction context.
Where did the third runway go?
Between 1992 and 1994 Baulderstone Hornibrook Engineering Pty Ltd (BHE) was the head contractor in the design and construction of the third runway at Sydney Airport. Insurance had been arranged for BHE and its subcontractors by the Federal Airports Corporation (subsequently Sydney Airports Corporation Limited) (the Airport). A number of different insurers were used, providing total cover of approximately $50million. BHE also had its own cover of $20 million.
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Corporate Risk and Insurance Update - September 2008
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41KB
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Insurer bail-outs - should Australian policy holders be concerned? In the wake of the US Federal Reserve's US$85 billion bail-out of AIG, Australian policy holders may understandably be concerned about the security of their own insurance arrangements
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Corporate Risk and Insurance Update - September 2008
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33KB
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Another case of non-disclosure – D&O Insurance this time.
Hot on the heels of CGU Insurance Limited v Porthouse[1], another non-disclosure decision has demonstrated the need for companies to disclose matters relevant to the risk of insolvency. On 18 August 2008, Justice Einstein, in Martin John Green in his capacity as liquidator of Arimco Mining Pty Limited (in liquidation) v CGU Insurance Limited & Ors [2008] NSWSC 825, reduced CGU's liability to nil as a result of Arimco's non-disclosure.
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Corporate Risk and Insurance Update - August 2008
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35KB
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Joint venture operators of a mine denied indemnity for consequential loss under Industrial Special Risks Insurance Policy in the absence of physical damage to property
A recent decision of the Victoria Court of Appeal underscores the importance of seeking appropriate legal advice when inserting additional clauses into policies of insurance. When inserting additional clauses, it is important to ensure that account is taken of the structure of the policy to avoid ambiguities and to ensure the clause achieves the purpose intended by the parties.
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Corporate Risk and Insurance Update - July 2008
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34KB
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Objectivity prevails in PI Insurance – the High Court knows what is 'known'
In an eagerly anticipated decision, the High Court of Australia yesterday reversed a string of decisions to hold that an objective test is applicable when considering the operation of "known circumstance" exclusions
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Corporate Risk and Insurance Update - July 2008
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32KB
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Indemnity and insurance clauses come up short – could it happen to you?
In another decision highlighting the need for careful drafting, the NSW Court of Appeal has read down both an indemnity clause and an insurance clause to not only conclude that the sub-contractor's indemnity did not extend to liability incurred by a head contractor as a result of the head contractor's own negligence but also that the sub-contractor's insurance obligations were similarly limited
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Corporate Update - June 2008
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36KB
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Where did my insurance go? Directors may find that their insurance policy is not there when they actually need it
as the renewal season approaches, companies and their officers should be reviewing their D&O insurance to ensure the best possible coverage. You know that your company has taken out D&O insurance, but will cover be there when you actually need it? Unless the policy adequately addresses the effect of the actions of fellow directors, you may find that the policy has effectively gone up in smoke.
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Banking and Finance Update - June 2008
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33KB
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The limited liability of contractors leaves banks and insurers exposed. The potential recovery gap created by the mandatory limitation of liability under professional standards legislation is causing headaches as banks and insurers debate who should carry this exposure.
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Corporate Risk and Insurance Update - May 2008
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23KB
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gadens lawyers' leading corporate risk and insurance practice has been strengthened by the addition of Ray Giblett as a partner.
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Corporate Risk and Insurance Update - May 2008
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25KB
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Court limits an insurer's ability to raise fraud in insurance disputes - Section 56 of the Insurance Contracts Act does not apply to fraudulent statements made in the course of giving evidence in connection with a disputed insurance claim
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Corporate Risk and Insurance Update - April 2008
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23KB
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Randwick City Council v Kurnell Passenger & Transport Service Pty Ltd [2008] NSWSC 296. In a decision handed down on 4 April 2008 her Honour, Simpson J, of the Supreme Court of New South Wales found that s 119(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) could not be relied on by a third party defendant to require an injured worker receiving compensation payments to be medically examined for the purpose of obtaining medical evidence for a recovery proceeding, the subject of which is the compensation payments being received by the injured worker
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Corporate Risk and Insurance Update - April 2008
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29KB
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A discussions of Australian Meat Holdings Pty Ltd v Sayers [2007] QSC 390 - also Caine v Lumley General Insurance Limited - what is a caravan? - court looks to object of policy
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Corporate Risk and Insurance Update - November 2007
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Sporting Grounds: Who is Liable?: Latrobe Council v. Williams [2007] TASSC 77. In the recent decision of Latrobe Council v. Williams, the full court of the Supreme Court of Tasmania considered the scope of the duty of care owed by a local council and two football clubs to an AFL player who suffered severe fractures to his lower leg injury during a football game, when his foot landed on the cover of an irrigation outlet that was set into the ground of the field
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Queensland Corporate Risk and Insurance Update - January 2008
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Insurance Update – Gadens establishes favourable precedent for respondents and their insurers regarding Personal Injuries Proceedings Act claims - Gadens Lawyers assisted the respondent and its insurer to successfully defeat a claimant’s application for leave to commence proceedings in a personal injury claim in Zinns v Luca Paccioli Pty Ltd (now known as Plantation Rise Pty Ltd) & Anor [2007] QDC 267
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Corporate Risk and Insurance Update - November 2007
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The Liability of Landlords Revisted: Estate of the Late Joseph James Virgona v. De Lautour [2007] NSWCA 282.
A recent decision of the New South Wales Court of Appeal, Estate of the late Joseph James Virgona v. Rachael May De Lautour (18 October 2007), has upheld the landmark High Court case of Jones v. Bartlett by deciding that a landlord did not breach its duty of care to a plaintiff tenant who fell through the roof of a rented property
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Corporate Risk and Insolvency Update - August 2007
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Adventurous decision - a recent decision by a single associate justice of the NSW Supreme Court in the matter of Hall v Adventure Training Systems Limited & 2 Ors [2007] NSWSC produces some curious findings relating to non-delegable duties and insurance cover
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Corporate Risk and Insurance Update - July 2007
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Are principal contractors and occupiers of premises liable for injuries to independent contractors?
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Corporate Risk & Insurance Update - June 2007
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Personal Responsibility – 15 year old boy fails in BMX jump
and in court.
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Corporate Risk and Insurance Update - May 2007
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The law of diving - a recent Queensland Supreme Court case, Reardon v State of Queensland [2007] QSC 105, was decided by Justice Cullinane on 15 May 2007, with judgment against the plaintiff who was rendered quadriplegic after diving into a rock pool in a National park near Townsville
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Insurance Update - May 2007
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A step too far: widening the scope of liability? - in a recent district court decision, it was held that the rape of a woman was causally connected to the fact that she had broken her ankle weeks earlier at a CityRail station - as a result the defendant, the State Rail Authority of New South Wales (SRA), was held liable and damages awarded to the plaintiff
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Corporate Risk and Insurance Update - March 2007
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Fight club: the hotelier's duty of care - recent decisions on economic loss in Queensland
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Corporate Risk and Insurance Update - February 2007
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Latest update to the Queensland Civil Liability Act 2003 - future economic loss claims by sportsmen - Court of Appeal asked to view surveillance tapes: Sumbul v Melbourne All Toya Wreckers P/L [2006] VSCA 292
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