Topic: Cases

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Insurer ‘waives’ goodbye to its rights – Cyclone lifts roof on non-disclosure issues

The recent Federal Court of Australia decision in Delor Vue Apartments CTS 39788 v Allianz Australia Insurance Ltd (No 2) [2020] FCA 588 found an insurer can be estopped from changing its mind on a claim. The case provides guidance for underwriters and brokers on the need to make appropriate inquiries during the underwriting process … Continue reading

Are we exclusive yet? The High Court decides on the exclusivity principle for aviation claims in Parkes Shire Council v South West Helicopters Pty Limited [2019] HCA 14 (‘South West Judgment’)

Yes we are, according to the High Court of Australia. On an issue that was previously up in the air, the High Court has provided some long awaited clarity on the scope of claims that can be made against a domestic carrier in the event of death or injury to a passenger. Claims brought by … Continue reading

Section 54 cannot cure what you didn’t know or didn’t exist

DIF III – Global Co-Investment Fund LP v Babcock & Brown International Pty Limited The recent NSW Supreme Court decision in DIF III – Global Co-Investment Fund LP v Babcock & Brown International Pty Limited ruled that section 54 the Insurance Contracts Act 1984 (Cth) (ICA) did not cure a lack of notification of circumstances … Continue reading

Informal indoor cricket game – non-participant and casual onlooker struck in eye with ball resulting in injury. Materialisation of inherent risk and obvious risk defence.

In the decision of Redding v Manly Life Saving Club Inc & Anor [2018] NSW DC 278 District Court Judge Russell found in favour of the plaintiff, a 16 year old girl and member of the Manly Life Saving Club.  The plaintiff was assisting in running a Manly Club BBQ to raise funds. Whilst assisting … Continue reading

Go Kart appeal goes off the track for the Church

Dixon v Apostolic Church Australia Ltd [2018] WASCA was an appeal from a judgment of the District Court of Western Australia that had found the Apostolic Church liable in negligence to Dixon who sustained injuries when she struck a tree whilst participating in a go karting event organised by the Church.  Dixon was a volunteer … Continue reading

Court revisits the rights of a professional jockey to sue another jockey – is an injury from a professional horse race an obvious risk?

In the decision of Lynch v Cavallo [2018] NSW DC, the court on an interlocutory motion was required to revisit the question of whether a professional jockey can sue another professional jockey injured in a professionally organised horse race. In Goode v Angland [2017] NSWCA 311 the Court of Appeal held that a professional horse … Continue reading

WA Court of Appeal plugs leaky District Court judgment and construes insurance policy in favour of insurer

In the recent Western Australian Court of Appeal decision of WFI Insurance Ltd v Manitowoq Platinum Pty Ltd & Ors [2018] WASCA 89, the former Chief Justice rejected the District Court judge’s interpretation of a condition in a business liability insurance policy that the insured had relied upon to deny indemnity. Summary The District Court … Continue reading

Fraudulent non-disclosure, avoidance and refusal to advance – Federal Court decides insurers can avoid advancing defence costs to Cranston and Onley

The Full Court of the Federal Court in the last couple of weeks considered a question that by some has been considered a “sleeper issue” which had not previously received judicial attention. The question was whether a final adjudication clause in a conduct exclusion prevents Underwriters from relying on their statutory right to avoid a … Continue reading

Construing combined PI/PL insurance policies: NSW Court of Appeal rejects literal approach

Coverage disputes can arise out of combined professional indemnity (PI) and public liability (PL) insurance policies where a claim appears to fall between the two policies. In Pacific v Walsh ([2018] NSWCA 9), the NSW Court of Appeal declined to construe a combined policy literally, as this would have resulted in no cover for the … Continue reading

Residential building disputes – buyer beware, certifying bodies catch a rare break

As insurers involved in residential building disputes know, a building claim typically brings a cast of thousands to the courtroom. While owners, builders and engineers typically take centre stage, local Councils and certifiers can unwittingly become involved as bit players due to their role in “signing off” on a project, and perhaps more importantly, because … Continue reading

Drink driver wa(i)ves goodbye to cover

In the world of commercial and consumer transactions, parties often seek to redistribute risk. Risk can be transferred or assigned by a variety of different vehicles including warranties, waivers, guarantees or simply under the terms of the agreement. Often, the method adopted can exhibit a number of similarities with a contract of insurance, such as … Continue reading

When is it reasonable to reject a costs-protective offer? Trouble on the travelator

When is it reasonable for a plaintiff to reject a defendant’s costs-protective offer?  This was the key issue for consideration in the case of Andrenacci v Australian Pacific Airports (Melbourne) Pty Ltd (Ruling No 2) [2017] VCC 864. Facts Ms A sued Australia Pacific Airports (APA) in relation to injuries she allegedly suffered when she … Continue reading

Life insurers are not an employment agency

Assessing life insurance claims is a careful balancing act, weighing up the opinions of various medical experts and vocational assessors. Dotlic v Hannover Life Re of Australasia Limited [2017] NSWSC 986 provides some much needed colour to the shades of grey insurers face when considering expert evidence. The Accident Mr Dotlic immigrated from Bosnia to … Continue reading

Which principles should be applied when interpreting insurance policies?

A recent Victorian Supreme Court decision has confirmed that a court, when interpreting a policy of insurance, will assess the matters by reference to the ‘natural and ordinary meaning’ of the word/clause.  Simple, right?  But determining the ‘natural’ or ‘ordinary’ meaning of words is not always straightforward and rarely receives universal acceptance. Guastalegname v Australian … Continue reading

Nothing sweet about an oil contamination

The recent decision of the Supreme Court of New South Wales in Cape Byron Power I Pty Ltd v HSB Engineering Insurance Ltd [2017] NSWSC 1081 provides a timely reminder of the importance of clear policy drafting for underwriters of debt servicing standing charges and the adverse interest consequence which can follow if a denial … Continue reading

We don’t have your back: the importance of clear drafting in reinsurance contracts

A recent NSW Court of Appeal decision highlights the importance of clearly defining the scope of reinsurance cover, rather than relying on a presumption that cover will always be held to be back-to-back with the underlying insurance:  Metlife Insurance Ltd v RGA Reinsurance Company of Australia Ltd [2017] NSWCA 56 Retreat from the treaty In … Continue reading

Litigation funders: do they have to provide security for costs?

It is increasingly common for insurers to be faced with the prospect of defending legal proceedings, which are commenced by an insolvent plaintiff, but are financed by litigation funders. The advent of litigation funding presents legal and strategic challenges for insurers that wish to obtain security for any adverse cost order that might be made … Continue reading

Asking the right questions to make out the Peer Professional Opinion defence

In Australia, the Peer Professional Opinion defence allows a professional to defend a negligence claim if the professional’s conduct is endorsed by a body of peers. The defence was embodied in legislation in each of the states of Australia[i] as part of liability law reform following the Ipp Report. Although the precise terms of the … Continue reading

Pollution: liability for voluntary restorative works and issues of non-disclosure

The recent decision in Amashaw Pty Limited v Marketform Managing Agency Ltd [2017] NSWSC 6212 saw an insured service station operator recover costs for restorative, but not preventative, works it voluntarily undertook following an explosion in a nearby sewer main caused by petrol vapour emanating from the service station. The decision provides useful guidance on … Continue reading

Industry specific policies: how intimately should you know the tricks of the insured’s trade?

A recent decision of the NSW Court of Appeal highlights some pitfalls with targeted industry insurance policies where insurers ultimately accept undisclosed risks. Underwriters of an insurance package targeting the adult industry and insuring premises operating as a brothel were found to have accepted the risk that persons operating or frequenting the premises may have … Continue reading

Interpreting coverage clauses: can extrinsic material be considered?

The recent decision in AAI Limited t/as Vero Insurance v GEO Group Australia Pty Limited [2017] NSWCA 110 affirmed what we’ve known all along: courts will read a coverage clause objectively in the context of the whole insurance contract. But does this context include extrinsic material? According to the New South Wales Court of Appeal, … Continue reading