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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

Don’t be collared by your cap – how to ensure your insurance responds Weir Services Australia Pty Limited v AXA Corporate Solutions Assurance [2017] NSWSC 259

The recent decision of Weir Services Australia Pty Limited v AXA Corporate Solutions Assurance [2017] NSWSC 259 is a cautionary tale for insureds seeking to preserve cover when settling third party claims. In order to succeed against the insurer, an insured must prove the existence and quantum of the insured’s liability to the third party. … Continue reading

Limiting Clauses in insurance policies – a recent case study

The District Court of Western Australia has recently handed down a decision regarding the scope of general conditions in a policy of insurance which purport to limit an insurer’s liability for claims (Limiting Clauses):  Manitowoq Platinum Pty Ltd & Anor v WFI Insurance Limited [2017] WADC 32. In the absence of any submissions made in … Continue reading

Advocate’s immunity update: High Court hands down Kendirjian decision

Timing is everything. On Tuesday, we wrote about the High Court’s pending decision in Kendirjian v Lepore.  On Wednesday, the court handed down its decision. As expected, consistent with the views it expressed in Attwells v Jackson Lalic Lawyers Pty Limited, the court found that advocate’s immunity did not apply to a claim for negligent … Continue reading

Work or play – are professional sports recreational activities?

Some people are lucky enough to make a living by engaging in professional sports.  Does the law treat amateurs who suffer injuries differently from those who pursue sports as a profession?  Two conflicting decisions by superior courts in New South Wales and Tasmania have thrown the law on this point into  disarray. The defence Under … Continue reading

Predictive coding in discovery saves 583 weeks of a young lawyer’s life

The Supreme Court of Victoria has become the first court in Australia to order the use of technology assisted review (also known as TAR), or predictive coding, in discovery. The Court has also issued a new practice note on Technology in Civil Litigation, which came into effect on 30 January 2017.   The Court requires parties … Continue reading

Class actions: Is the end only the beginning?

One of the principal aims of a class action regime is to resolve a large number of claims in a single, consolidated action, thereby avoiding a multiplicity of individual actions and enabling savings to be made through economies of scale.  The finality of class action proceedings with respect to group member claims has, however, recently … Continue reading