Topic: Cases

Limiting Clauses in insurance policies – a recent case study

By Adrian Sella on May 2, 2017 Posted in Cases

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

By Ceri McDonald on April 3, 2017 Posted in Cases

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

Advocate’s immunity: High Court asked to reopen its 2016 Attwells decision

By Ceri McDonald and Felicity Young on March 28, 2017 Posted in Cases

With the ink barely dry on its May 2016 decision in Attwells v Jackson Lalic Lawyers Pty Limited [2016] HCA 16, a new contest over the scope of advocate’s immunity is afoot in the High Court of Australia. On 9 February 2017, the High Court heard submissions in Kendirjian v Lepore (Case S170/2016) on whether … Continue reading

Work or play – are professional sports recreational activities?

By Julie Darley and Daniel Troy on March 14, 2017 Posted in Cases

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

By Christine Dunn on March 7, 2017 Posted in Cases

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?

By Helen Gill and Caleb Jones on February 1, 2017 Posted in Cases

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

You think that’s excluded, think again – section 54(3) of the Insurance Contracts Act to the rescue

By Ray Giblett and Melissa Tan on January 24, 2017 Posted in Cases

Allianz Australia Insurance Ltd v Smeaton [2016] ACTCA 59 A jet ski, no licence, and a freak accident which ended a boys’ afternoon out on the Ross River, Queensland. To top it off, a policy exclusion apparently excluded cover. Fortunately for the insured, section 54 of the Insurance Contracts Act 1984 (Cth) (ICA) stepped in … Continue reading

Is there a duty of care to protect customers from a bank robber?

By Renee Gorenstein and Ming Kalanon on January 24, 2017 Posted in Cases

Bank robberies may be foreseeable. But does a bank owe its customers a duty to protect them against the risk of harm by a bank robber? The Supreme Court, Court of Appeal, says No. A bank has no control over the unpredictable conduct of an armed robber: Roberts v Westpac Banking Corporation [2016] ACTCA 68 … Continue reading

Plaintiff’s trampoline case bounced due to voluntary assumption of risk

By Katherine Goldberg on December 13, 2016 Posted in Cases

Negligent but not liable. That was the jury’s decision in a recent case involving voluntary assumption of risk in the world of trampoline-dodgeball that saw the lawyers spring into action: Rakich v Bounce Australia Pty Ltd [2016] VSCA 289… Continue reading

What does a fire, a million dollar property and a former inmate make?

By Kathryn Whybourne on December 6, 2016 Posted in Cases

The answer? Not what you’d expect. Proving that an insured has been fraudulent under section 56 of the Insurance Contracts Act 1984 (Cth) where the evidence is mainly circumstantial is no mean feat. Insurance Australia Ltd (IAL) learned this lesson on 4 November 2016, in a disputed insurance claim for property damage resulting from a … Continue reading

A High-Water Mark in Section 54’s Voyage to Certainty?

By Tristan Baker and Ray Giblett on November 25, 2016 Posted in Cases

If the High Court’s signal in Highway Hauliers was not clear enough, the Full Court of the Federal Court has further affirmed the pervasive remedial nature of section 54 of the Insurance Contracts Act 1984 (ICA). Watkins Syndicate v Pantaenius concerned an appeal from a decision handed down in January this year (See https://www.insurancelawtomorrow.com/2016/10/section-54-of-the-insurance-contracts-act-a-hard-act-to-follow ). … Continue reading

How Fit is “Reasonably Fit”?

By Amanda Underwood on November 23, 2016 Posted in Cases

Tension between insurer and insured in life and TPD policies often arises around the question of whether an insured worker is permanently disabled simply because of an inability to return to the same pre-injury employment. What if the worker can return to other paid work, albeit different to what was previously undertaken? What must the … Continue reading

An insured by any other name doesn’t smell as sweet

By David Frew and Ray Giblett on October 11, 2016 Posted in Cases

A recent NSW court of appeal decision has confirmed that section 45 of the Insurance Contracts Act 1984 (Cth)(ICA) will only render an “other insurance” clause void where the insured is a contracting party to both policies.… Continue reading