Public liability

  • This field is for validation purposes and should be left unchanged.

7 tips for dealing with insurance claims

7 tips for dealing with insurance claims

If you’re reading this, you’ve probably either had a bad experience with an insurer or you know someone who has. On a daily basis I receive calls from individuals and businesses who are in a dispute with their insurer about cover extending to a claim or the value of the claim.

There is good news. As an insured, there are things that you can do to give yourself the best shot at your claim being paid, without setting one foot inside a Court room. For most insureds, litigation is expensive and they would be far better off resolving a claim out of Court.

Tip 1: Keep a record of conversations

If you’ve ever called an insurer you will have heard a message which tells you that the call is being recorded for ‘quality and training purposes’.  The record keeping of an insurer (like many organisations) is not foolproof. For this reason, you should keep a record of all calls that you have with the insurer. Keep a record of the date and time of the call, the person you spoke to and the content of the discussion. If something important is discussed, follow up the discussion with an email to the insurer confirming the discussion and the information that they provided.

Don’t record your telephone call using an app on your mobile or a device which is attached to your phone. It is unlawful to record a telephone call with a device physically attached to the telephone and this may include an app on your mobile: Telecommunications (Interception) Act 1979 (Cth). In Queensland, it is lawful for a telephone call to be secretly recorded by an external device (like a dictaphone or an app on a computer) by a person who is a party to the conversation: section 43, Invasion of Privacy Act 1971 (Qld). If you are outside of Queensland, you should check the laws in your State or Territory about recording of conversations.

Tip 2: Get your policy documents

The starting point for any claim is to consider the wording of your insurance policy. In particular, you will need a copy of your schedule of insurance and policy wording (Product Disclosure Statement). You can request these from your insurer or insurance broker.

Most people look no further than their policy wording. You need to read the schedule of insurance with the policy wording. The schedule of insurance talks to the policy wording – it’s like using a key for a map, your schedule of insurance helps you understand how the policy operates for YOU. The policy wording is the same for many insureds but the schedule of insurance explains how you are covered.

Tip 3: Prove your claim and then prove it again (if necessary)

If you make a claim against your insurance – you are required to prove your claim and co-operate with your insurer. This means that you need to provide information to the insurer about the circumstances of the loss and its value. The types of documents and information you should provide vary from claim to claim. Some of the documents you could gather to prove your claim may include: a police report; statements; photographs; invoices; quotes; and, expert reports. Damaged items should not be disposed of if they are relevant to your claim.

Your insurer may appoint a loss adjuster or investigator to consider the value of your claim and whether the loss falls within the cover provided by the policy. Generally speaking, anyone appointed by the insurer to investigate the claim is an agent for the insurer. You should undertake your own investigations with third parties to consider whether the claim has been properly assessed. The cost of doing so may be recoverable against your insurer as ‘claims preparation costs’, however, policies generally require insureds to seek approval from the insurer before incurring these costs.

Once you have gathered as much documentation as possible and you have provided that to your insurer, the insurer may still have concerns. Depending on their response it may be necessary to provide more information or documents in support of your claim.

Tip 4: Request documents

You should request (in writing) copies of all documents that the insurer receives from third parties like reports, quotes, statements, invoices, photographs. You should also request copies of transcripts or audios from conversations with insurers if you think that you have been provided with inconsistent information during the claim process or, when you first placed your cover.

Many insurers subscribe to the 2014 General Insurance Code of Practice. See the full list of insurers subscribed to the Code here. The Code states that insurers will provide copies of reports and other information relevant to a decision to deny cover in certain circumstances. Click here to read a copy of the Code.

Tip 5: Make a complaint

If you are dissatisfied with how your claim is managed or with a decision by your insurer, you can submit a complaint. Your policy will outline the complaints process and should state a telephone number, address and/or email address for this purpose.

I often here from people that they are dissatisfied with the quality of communication from the insurer or the insurer’s agent – e.g. they weren’t provided with adequate information, their calls weren’t returned or they were required to speak to someone new every time they called the insurer. These are legitimate concerns by customers of any organisation and insureds are right to raise them with their insurers. However, it is important to get to the heart of the issue and to identify what is stopping your claim from being accepted or paid. If you cannot work out what the issue is – seek clarification from your insurer and/or advice from your broker, or an independent solicitor.

Once you have submitted your complaint, wait for the complaints resolution period to expire. If it expires and you do not hear from the insurer – follow them up in writing and by telephone. If the complaint does not lead to the claim resolving to your satisfaction, the complaints process should give you more of an idea about the insurer’s concerns.

Tip 6: Seek advice early

I speak to insureds at all stages of their claims. Some people contact me immediately after an event; some contact me years afterwards. Generally speaking, the sooner insureds obtain professional advice from their insurance broker or an independent solicitor, the better.

Tip 7: Request an internal review

An internal review is an opportunity for an insured to ask their insurer to review their decision about a claim and consider the claim again. You may provide the insurer with new information or evidence to consider. Your policy will explain the timeframes within which your insurer is required to make a determination. It is appropriate to seek legal assistance with preparing submissions to the insurer in support of your claim.

Next steps

Once the insurer has internally reviewed its decision, you should seek legal advice about the most appropriate next step in your matter (if you have not already done so). The next appropriate step may be to apply to the Financial Ombudsman’s Service, start proceedings in the Court or apply to the Court for declaratory relief.

Dealing with insurance claims can be particularly stressful and for most insureds it is a foreign experience. It is important to speak to an experienced solicitor or, your insurance broker, at an early stage to ensure that your rights and interests are properly protected.

BOOK A CONSULTATION to discuss an insurance claim by calling 07 3067 3025 or completing the online enquiry form below.

Contact us

Contact Form

  • This field is for validation purposes and should be left unchanged.

Click here to find out about our INSURANCE CLAIM services. 

Subscribe to receive further updates from our blog on personal injuries and insurance law.

Subscribe to blog

  • This field is for validation purposes and should be left unchanged.
Kate Denning7 tips for dealing with insurance claims
Read more

Court restrains Plaintiff from communicating with legally represented Insurer

Court restrains Plaintiff from communicating with legally represented Insurer

Case note: Day v Woolworths Ltd & Ors [2018] QSC 82

Two Defendants have been successful in obtaining an interlocutory injunction from the Supreme Court of Queensland to restrain a Plaintiff from communicating with their insurer, Zürich Australian Insurance Limited and associated companies.

Background

The Plaintiff commenced proceedings against CPM Australia Pty Ltd, Retail Activation Pty Ltd (Second and Third Defendants) and Woolworths Ltd. The Plaintiff seeks damages for personal injuries which she claims to have suffered in an accident at the premises operated by Woolworths Ltd.

Zurich Australian Insurance Ltd is the insurer of the Second and Third Defendants.

The Plaintiff’s conduct complained of by the Second and Third Defendants, is summarised as follows:

  • The Plaintiff’s husband, on her behalf, threatened to report employees of Zürich to various bodies.
  • The Plaintiff communicated to Zürich, including its directors, allegations of unethical and improper conduct by the solicitors for the Second and Third Defendants.
  • The Plaintiff’s husband, on her behalf, has accused the directors of Zürich of misusing shareholders’ funds by encouraging the solicitors for the Second and Third Defendants to continuing to defend their claim.
  • The Plaintiff and her husband in correspondence to Zürich’s Australian General Counsel and Secretary, who happens to be a lawyer, also copied to Zürich’s Chief Executive Officer and Directors, accused Zürich’s General Counsel “or your other officers” of using the court process for improper purposes, professional misconduct and breach of the Corporations Act. The Plaintiff and her husband also accused two solicitors from the firm acting for the Second and Third Defendants of corrupt conduct in breach of the Crime and Corruption Act 2011.
  • The Plaintiff and her husband accused Zürich’s General Counsel of authorising or instructing criminal conduct in fraudulently forging and uttering a certificate of readiness by the second and third defendant solicitors.

Although the Plaintiff is a litigant in person, she is close to completing a law degree, has worked in the legal profession for a firm of lawyers and has been involved in litigation on several occasions in the past.The Court was satisfied that the Plaintiff was aware of the fact that, if she were a lawyer, she would not be able to behave in this way.

Elements of an Interlocutory Injunction

In order to obtain an interlocutory injunction, a party must demonstrate to the Court that:

  • There is a serious question to be tried;
  • Damages are not an adequate remedy; and
  • The balance of convenience favours the granting of an injunction.

Decision

The Court ordered that the Plaintiff be restrained from:

(a) contacting or communicating with Zurich Australian Insurance Limited and three other associated Zurich companies, or any director, officer, employee or agent of Zurich, other than Mills Oakley Lawyers, Zurich’s solicitors, in relation to this proceeding, or any matter connected with this proceeding, by any means whatsoever; and/or

(b) allowing, causing, encouraging, permitting or suffering any person on her behalf to contact or communicate with Zurich or any director, officer, employee or agent of Zurich, other than Mills Oakley Lawyers, Zurich’s solicitors, in relation to this proceeding, or any matter connected with this proceeding, by any means whatsoever,

until the conclusion of these proceedings or further order.

The question of costs was reserved.The Plaintiff provided an undertaking in the terms of the first order at the conclusion of the oral hearing, however, the Court considered it appropriate to extend those undertakings by making orders in the same terms until the conclusion of the proceeding or further order.

Ratio

The Court noted that, even where parties are represented, ‘absent some form of improper or inappropriate behaviour on the part of a party or parties’, there was generally no reason why the parties should be prevented from communicating directly with each other.

However, a key consideration for the Court was whether conduct, like that which was complained of, might affect the ordinary and unimpeded course of proceedings.The Court had regard to commentary in R v Dunn on the role of the law of contempt in the administration of justice:-

that is, in the resolution of disputes, not by force or by private or public influence, but by independent adjudication in courts of law according to an objective code [such] that a case pending in a court ought to be tried in the ordinary course of justice…

In arriving at the decision, the Court determined:

  • There was a real issue of whether the conduct complained of constituted an attempt to dissuade Zurich from supporting the Second and Third Defendants in their defence of the proceedings by threats, abuse and misrepresentation of the nature of the proceedings or the circumstances out of which they arose;
  • The Defendants may suffer injury for which damages will not be an adequate remedy if they are impeded in defending the litigation by the need to deal further with communications of this nature or if they are persuaded to settle the proceedings to the disadvantage of the Second and Third Defendants;
  • The public or private interest the Plaintiff may have in continuing to communicate with Zurich was overridden by the second and Defendants’ rights to an unimpeded defence of the claim.

Considerations

It is not unusual for parties to become frustrated with litigation or the tactics of an opposing party. However, legitimate legal arguments and concerns about the way that a party has conducted a matter should be reserved for a party’s pleaded case, formal correspondence and proper Court processes. This decision may be of interest to those involved in litigation where one party is threatening to go to the media or in cases where one party may be having improper contact with another party.

BOOK A CONSULTATION to discuss a public liability claim by calling 07 3067 3025 or completing the online enquiry form below.

Contact us

Contact Form

  • This field is for validation purposes and should be left unchanged.

Click here to find out about our NO WIN NO FEE services. 

Subscribe to receive further updates from our blog on personal injuries and insurance law.

Subscribe to blog

  • This field is for validation purposes and should be left unchanged.
Kate DenningCourt restrains Plaintiff from communicating with legally represented Insurer
Read more

What is a trip hazard?

What is a trip hazard?

Case note: The Thistle Company of Australia Pty Ltd v Bretz & Anor [2018] QCA 6

A service station owner has been unsuccessful in its appeal of a decision of the District Court of Queensland to award $96,000 to a man who tripped on the plinth of a petrol bowser. The decision by the Queensland Court of Appeal provides some insight into what a court might consider a trip hazard to be in a public liability claim.

The accident happened in 2012, when the man was aged 80.

Background

Mr Bretz attended the service station and filled his van and 2 x 20 litre drums with fuel. He was unfamiliar with the servo but CCTV footage showed that he spent several minutes walking around the bowser area. As he was doing so, he was looking down and his feet were close to the plinth of the bowser at times. When he finished he ‘took off to walk around the bowser, and the next thing [he] knew [he] was heading for the bitumen’.  Mr Bretz tripped or lost his footing when the ball of his foot hit the edge of the plinth.

The petrol bowser was centred on a raised concrete platform or plinth. The plinth extended 30cm from the edge of the bowser and was 37mm – 39mm high. It was painted black just two weeks prior to Mr Bretz’s fall. Before that it was yellow. It was repainted because the yellow paint was wearing off and there had been customer complaints about the slipperiness of the plinths.

Mr Bretz brought proceedings in negligence against the service station owner, The Thistle Company of Australia Pty Ltd (the TCA). The TCA brought a claim against Tam Farragher & Associates Ltd (TFA), who designed the concrete plinth.

Mr Bretz succeeded in his claim in negligence against the TCA in the District Court. The TCA failed in its claim against TFA, who had an exclusion clause in their favour. The TCA appealed the decision to the Queensland Court of Appeal.

The Appeal

The TCA challenged the following findings of the District Court:

(1) the plinth was not an ‘obvious risk’;

(2) the risk was ‘not insignificant’;

(3) Mr Bretz was not contributorily negligent;

(4) TCA’s third party claim against TFA should be dismissed.

The finding that the plinth was not an ‘obvious risk’

The TCA argued that the trial judge ought to have found that the plinth was an ‘obvious risk’ within the meaning of section 13 of the Civil Liability Act 2002 (Qld) and that it had no duty to warn Mr Bretz of its presence. The Court rejected the TCA’s argument because:

(1) the repainting of the plinth camouflaged it;

(2) the rise of the plinth was only 37mm. It was ‘high enough to trip someone, but not so high to be immediately apparent’;

(3) the plinth was difficult to see because it was located close to where customers would park;

(4) the trial judge appropriately determined that the risk was not ‘obvious’ to a reasonable person in the position of Mr Bretz having regard to the shallow nature of the plinth, that it was an unusual feature of the site, Mr Bretz’s limited experience of the site and that it was camouflaged.

The finding that the trip risk was ‘not insignificant’ 

The TCA contended that the trial judge should have determined that the risk of tripping on the plinth was insignificant. Under section 9 of the CLA a person does not breach a duty to take precautions against a risk of harm unless (among other things) the risk was ‘not insignificant’.

There had been multiple complaints about the slipperiness of the original surface. The only complaint about the plinth after it was painted was the complaint by Mr Bretz. The trial judge found that there was evidence that others had tripped or slipped because of patterns of wear on the plinths.

The TCA argued that the trial judge conflated the episodes of complaint about slipperiness with that of tripping. The Court rejected the TCA’s criticism of the trial judge’s reasoning and noted:

(1) a customer tripping and falling at a service station was one of the business’s highest operational risks;

(2) there was no operational reason to make the plinth the same colour as the surrounding ground beyond the aesthetic. The removal of the visual cue increased the risk of falling, and with a risk of falling, comes a risk of serious injury;

(3) the very risk which eventuated was one which was identified prior to the incident;

(4) it was open to the trial judge to find that once the plinth was painted black, other patrons had stumbled or tripped on it.

No contributory negligence by Mr Bretz

The TCA complained that there should have been a finding that Mr Bretz was contributorily negligent because he was not looking where he was walking. The basis of the TCA’s complaint was that Mr Bretz’s own evidence suggested a cavalier attitude on his part, because in cross-examination there was this exchange: ‘Did you watch where you were walking?– No. Take off and walk’.

The Court was satisfied that it was open to the judge at first instance to find that Mr Bretz’s conduct was ‘mere inattention’ and so, no finding of contributory negligence should follow. The Court was satisfied with the approach of the trial judge and observed the submission made on behalf of Mr Bretz that, ‘as a general rule, pedestrians are not obliged to watch their feet to avoid unexpected obstructions as they walk’.

Dismissal of third party proceedings 

The TCA had a contract with TFA who designed the plinth. The contract contained an exclusion clause in favour of TFA which read:

‘After the expiration of one (1) year from the date of the invoice in respect of the final amount claimed by [the TFA] pursuant to clause 4, [the TFA] shall be discharged from all liability in respect of the services whether under the law of contract, tort or otherwise.’

The TCA alleged that if the plinth was a tripping hazard, it was because it had been negligently designed by the TFA. The trial judge found that the TFA was protected from liability by operation of the exclusion clause. On appeal, the TCA argued that the TFA should be liable because:

(1) there was no evidence that the period of one (1) year in the exclusion clause had expired;

(2) the TFA failed to ensure, through inspection, that the plinths were constructed in accordance with their design and this amounted to a breach of contract;

(3) the TFA’s liability did not arise ‘in respect of the services provided under the contract’ and therefore fell outside of the exclusion clause.

The Court dismissed the TCA’s complaint about the third party proceedings noting that this was not the TCA’s case at trial, that the TCA’s complaint was clearly ‘in respect of the services’ that had been contracted from TFA and finding that the exclusion clause operated to protect TFA from liability. There was no basis to doubt the trial judge’s finding that the one (1) year period under the exclusion clause had expired.

Considerations

This judgment will be of interest to business owners. In answer to the question of what a trip hazard is, some take away points from this case are that, in the context of a personal injury claim, a trip hazard might be one which has some of the following features:

(1) it is ‘high enough to trip someone, but not so high to be immediately apparent’;

(2) it is camouflaged by surrounding surfaces;

(3) it is hard to spot because of the presence of other objects;

(4) it has caused others to slip or trip on it;

(5) has been identified as a risk already by the occupier.

BOOK A CONSULTATION to discuss a public liability claim by calling 07 3067 3025 or completing the online enquiry form below.

Contact us

Contact Form

  • This field is for validation purposes and should be left unchanged.

Click here to find out about our NO WIN NO FEE services 

Click here to find out about our DEFENCE OF PUBLIC LIABILITY CLAIMS services

Subscribe to receive further updates from our blog on personal injuries and insurance law.

Subscribe to blog

  • This field is for validation purposes and should be left unchanged.
Kate DenningWhat is a trip hazard?
Read more

Fatigue Case | Plaintiff recovers $1.25M in Queensland journey claim

Case note: Kerle v BM Alliance Coal Operations Pty Ltd [2016] QSC 304

In the case of Kerle v BM Alliance Coal Operations Pty Ltd, the Supreme Court of Queensland considered the issues of work related fatigue, the duty of a mine operator to a worker and the question of whether a labour hire worker could be a servant of its host employer pro hac vice (for one occasion only), allowing the labour hire employer to shift responsibility for a worker to their host employer.

The doctrine of pro hac vice has the effect of deeming that someone is an employee of a company using the services of the person ‘for the time being’ or ‘for the occasion’. In negligence and workers’ compensation cases, successfully arguing pro hac vice will see an employer transfer their responsibility for a worker to another party. However, as this case illustrates, there is a heavy burden upon an employer who attempts to shift responsibility for a worker.

The Facts

Kerle was an employee of Axial HR Pty Ltd (Axial), a labour hire firm.  He was as a dump truck operator at the Norwich Park Mine near Dysart in Central Queensland.  His host employer was HMP Constructions Pty Ltd (HMP). BM Alliance Coal Operations Pty Ltd (BMA) was the mine operator.

In October 2008, at the end of four overnight 12-hour shifts, Kerle began driving to his home in Monto (more than 400 km away from the mine) and apparently fell asleep at the wheel some 300 km into his journey.  At the time of the accident, Kerle had been awake for 17 to 19 hours. Kerle’s vehicle swerved onto the right-hand of the road, hit a rail and then a concrete wall, resulting in significant injuries to Kerle, including a brain injury.

Kerle brought claims in negligence against Axial, HMP and BMA; on the basis that each company owed him a duty of care that had been breached.

The Issues

At trial, the Court considered issues such as:

  • fatigue and the other factors which could possibly have led to the accident;
  • whether Kerle was contributorily negligent, by starting or continuing the journey without sufficient rest;
  • which of the Defendants owed a duty of care to Mr Kerle;
  • how damages should be apportioned between those Defendants.

The Judgment

Justice McMeekin recognised that Kerle was an honest witness but that there were significant evidentiary problems with Kerle’s evidence because of his fatigue at the time of the accident and the head injuries he suffered.  However, the Court ultimately decided in his favour and awarded damages against his employer as well as against HMP and BMA.

Kerle’s employer, Axial, argued that Kerle was under the ‘effective control and supervision’ of HMP, and that HMP was therefore the employer pro hac vice.  In rejecting this argument, Justice McMeekin referred to the English case of Mersey Docks Harbour Board v Coggins & Griffiths (Liverpool) Ltd noting that the burden of proving an entity is an employer pro hac vice is very difficult and ‘can only be discharged in exceptional circumstances’, where the ‘entire and absolute control’ over the employee had passed to the second employer.  Justice McMeekin found that, in Kerle’s case, entire and absolute control had not passed from Axial to HMP, and that HMP was therefore not the employer pro hac vice.  The facts relied upon by His Honour in arriving at this decision were that:

  • the Plaintiff’s employment required him to report to both a site supervisor of HMP and Axial, providing him with the contact details for both;
  • it was a condition of his employment that he contact an Axial supervisor if he was unable to work on a particular day or if he was injured;
  • the Plaintiff was required to comply with Axial’s code of conduct while on site or at accommodation provided by the client; and
  • it was the, ‘policy of Axial to monitor and control the fatigue levels of employees at work, particularly when working extended hours’.

The Court found that responsibility for Mr Kerle’s injuries should be apportioned between Axial, HMP and BMA, to the Defendants as follows:

  • 36% (to Axial – employer);
  • 54% (to HMP – host employer); and
  • 10% (to BMA – mine operator).

The Court awarded damages to Kerle in the sum of $1.25M.

BMA’s Duty of Care

One significant aspect of the judgment was the finding that BMA, the mine operator, owed a duty of care to the Plaintiff.

His Honour found that it was not appropriate to limit consideration of whether a duty of care was owed to the usual circumstances in which a duty might be owed by a principal to an independent contractor (as per Stevens v Brodribb Sawmilling Co Pty Ltd or Leighton Contractors Pty Ltd v Fox), because:

  • The risk of personal injury in Stevens arose from the organising of activities between different contractors and that was not the risk here;
  • The Plaintiff was not injured when carrying out a specialised task that fell within the expertise of HMP or Axial;
  • BMA had detailed knowledge of the safety issues surrounding managing workplace fatigue; and
  • The risk did ‘not arise from the physical exigencies of the workplace or directly from the manner in which the work was performed by either Axial’s employees or any other contractor’. BMA brought the risk into being by its insistence on the consecutive 12-hour night shifts. And otherwise, statements of principle by Justices Brennan and Mason in Stevens, supported the imposition of a duty where the principal created the risk.

Taking into account these matters, including the features of the relationship between the Plaintiff and BMA, the Court was satisfied that BMA owed the Plaintiff a duty of care.

Contributory Negligence

Justice McMeekin accepted that fatigue was the most likely cause of the accident and rejected the Defendants’ argument that Kerle was contributorily negligent.  In doing so, the judgment addressed the allegations of the Defendants on contributory negligence, finding most notably:

  • There was no specific instruction by the Defendants to Kerle not to operate a vehicle when fatigued;
  • Kerle was not aware that he could use the accommodation at the site to rest after he had completed his last shift;
  • Kerle’s decision to embark upon the drive knowing that he had not rested and after completing his fourth consecutive night shift, illustrated his lack of understanding about fatigue.

Considerations

Principally, Kerle’s case is significant because it is one of a small number of Australian decisions which has considered workplace fatigue and related system failures in recent years. It will be of interest to employers and businesses operating in a number of industries (e.g. mining, oil & gas, transport) where workers travel for extended periods or, work long consecutive shifts on a FIFO basis. The case may also be of interest to compulsory third party insurers.

Secondly, it reinforces established law that employers, such as labour hire companies who provide labour to other companies, will not find it easy defend a claim on the basis that the employee was a servant pro hac vice of another entity.

And finally, it is of interest because the mine operator was found to have owed the Plaintiff a duty of care. This finding will be of particular interest to parties involved in multi-party disputes in mining, construction, oil & gas and infrastructure.

A full copy of the Court’s decision can be downloaded here.

BOOK A CONSULTATION to discuss a workers’ compensation claim by calling 07 3067 3025 or completing the online enquiry form below.

Contact us

Contact Form

  • This field is for validation purposes and should be left unchanged.

Click here to find out about our NO WIN NO FEE services

Click here to find out about our WORKERS COMPENSATION SERVICES FOR EMPLOYERS

Click here to find out about our WORKERS COMPENSATION SERVICES FOR SELF-INSURERS

Subscribe to receive further updates from our blog on personal injuries and insurance law.

Subscribe to blog

  • This field is for validation purposes and should be left unchanged.
Kate DenningFatigue Case | Plaintiff recovers $1.25M in Queensland journey claim
Read more

Pool tragedy caused by failure to warn of diving danger

Pool tragedy caused by failure to warn of diving danger

Case note: Lennon v Gympie Motel [2016] QSC 315

The Supreme Court of Queensland found the Gympie Motel 85% liable for injuries suffered by a girl who was rendered tetraplegic after diving into the Motel’s pool. The decision (delivered on 22 December 2016) is a timely reminder that businesses with pools and swimming facilities must take appropriate care for the safety of users. The judgment may also be used as a guide for businesses when considering the types of signage to display to adequately warn entrants of a risk of injury from diving.

The accident happened in 1998, when the girl was aged 12.

The Facts

On 21 February 1998, Karla Lennon, her mother and siblings stayed at the Motel. The family had not stayed there before.

The Motel had an in-ground pool. The pool was 10 metres by 5.2 metres, with an internal width of 4.5 metres. Its depth went from 0.9 metres to 1.74 metres. The pool was fenced.

There was a sign on the gate to the pool area which read:

‘Pool Rules

All children must be under adult supervision at all times, in pool area.’

On arriving at the Motel, Karla’s younger sister Letitia asked their mother if she could go swimming. The mother agreed and told Letitia that Karla would be in charge.

Letitia recalled that she and Karla were jumping in from different areas around the pool and gliding, to see how far they could each glide along. Letitia recalled other people present in the jacuzzi area of the pool and had a conversation with one of the people.

At one point a man said to Letitia, ‘…your sister is over there and she’s floating…’. Letitia told the man that Karla had done this before and that she was just playing a joke. The man left the pool area. Letitia realised that Karla was not responding. Emergency services attended. Karla suffered a ‘hypoxic brain injury secondary to immersion due to a cervical spine injury’.

Letitia (who was 7 years of age at the time) gave evidence about the circumstances leading up to the incident at the trial. There was no direct evidence at trial about the incident. Karla had no recollection of the event.

The Plaintiff’s Case

It was Karla’s case that:

(1) she knew not to dive into shallow water or pools in which she could not judge the depth;

(2) she intentionally dived into the pool, striking her head, and did not appreciate the depth of the pool;

(3) the Motel failed to warn her about the depth of the pool by having a ‘no diving’ sign or depth markers, or both;

(4) if the Motel had erected signage, warning users of the pool as to either its depth or that diving was prohibited, Karla would not have dived into the pool.

The Defendant’s Case

It was the Motel’s case that:

(1) there was insufficient evidence for the Court to conclude how Karla’s injuries occurred;

(2) the absence of depth markers or a no diving sign did not constitute a breach of duty because of the obviousness of the risk of diving into the pool;

(3) Karla was outgoing, oppositional and, even if a no diving sign or depth marker were present, she would have done exactly what she did;

(4) the foreseeability of any risks of injury were adequately addressed by the sign requiring adult supervision;

(5) Karla contributed to her own injuries.

The Judgment

Both parties led evidence about Karla’s character. The Court ultimately accepted submissions made on Karla’s behalf, that she was a responsible and mature child. In arriving at this conclusion, the Court took into account that:

(1) Karla had previously travelled by train, bus and water taxi to Stradbroke Island for 2 years prior to the incident, every weekend, during the school term and, without adult supervision;

(2) Karla worked in her mother’s second-hand store, serving customers, for up to three to four hours;

(3) Karla would travel with her father, who owned a trucking and logistics business, and she would take messages and write cheques; and

(4) Karla’s friend’s mother allowed Karla and her daughter to swim, unsupervised, at the beach.

The Court was satisfied, on the balance of probabilities, that Karla’s injuries were in fact caused by her diving into the pool and striking her head on the bottom of the pool. In arriving at this conclusion, the Court relied heavily upon the opinion of Dr Tuffley, who considered it was ‘highly probable, and certainly more probable than not’, that this was the cause of Karla’s injury.

The Court accepted that if the Motel had displayed a no diving sign, that Karla would have obeyed that warning. This was despite the fact that it was Karla’s evidence that she would have obeyed an instruction from her mother not to dive into the pool. Having regard to her character, the Court did not consider it was unreasonable for Karla not to be supervised by her mother in the pool.

The Court found that the duty of care owed by the Motel to Karla extended to take care for the safety of the persons using the pool and that the Motel breached its duty of care by failing to take the precautions (of displaying a no diving sign or a depth marker, or both) to warn guests who may misjudge the depth of the pool. Displaying the adult supervision sign did not discharge the Motel’s duty to the Plaintiff in this instance. The Court had regard to Australian Standards which state that, ‘[u]nless specifically designed for diving, private pools should not be used for that purpose’ and accepted the Plaintiff’s submission that there was no safe place to dive in the pool.

A deduction of 15% was allowed for the Plaintiff’s own negligence, having regard to the fact that while she was found to have dived in the deeper area of the pool and had been diving safely into the pool without incident for 10-15 minutes beforehand, she had a general awareness of the dangers associated with diving.

Considerations

This judgment will be of interest to pool owners and businesses with swimming facilities. The decision may be used as authority for the kinds of precautions that may be reasonably required of a commercial facility to address the risk of people diving into shallow water. However, it should not be taken as authority for the proposition that an absence of parental supervision will be superseded by an owner’s failure to warn of risks. The disposition of the Plaintiff was a key feature of the judgment in this case. There have been changes in the law since this incident occurred and similar circumstances, with a Plaintiff of a different maturity level, could produce a different result.

BOOK A FREE CONSULTATION to discuss your public liability matter by calling (07) 3067 3025 or complete the online enquiry form below.

Contact us

Contact Form

  • This field is for validation purposes and should be left unchanged.
Kate DenningPool tragedy caused by failure to warn of diving danger
Read more

Workers’ compensation changes to affect contribution claims

Workers’ compensation changes to affect contribution claims

Workers Compensation Qld – Workers Compensation Legislation Qld – Workers Compensation Lawyers Brisbane – Workers Compensation Law – Workers Compensation and Rehabilitation Act – Workers Compensation Insurance – Workers Compensation Scheme – Contractual Obligations – Contractual Indemnities – What is an indemnity clause? – Contractual Interpretation Australia – Contractual Indemnification – Contractual Disputes – Workers Compensation Regulator

On 14 June 2016, the Queensland Parliament introduced the Workers’ Compensation and Rehabilitation (National Injury Insurance Scheme) Amendment Bill 2016 (Qld) (Bill).

On 31 August, the Bill was passed (with amendments) that will constrain contractual indemnity clauses in workers’ compensation claims.

The Bill

The Bill is part of a broader social reform which includes the establishment of the National Injury Insurance Scheme for Queenslanders.

The Bill set out to restore the original policy intent of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) and provide certainty to stakeholders after recent Court decisions interpreted certain provisions of the WCRA in ways that could adversely affect the operation of the scheme.

The Amendment

Clause 31: which will amend Chapter 5 of the WCRA states as follows:

‘236B Liability of contributors

(1) This section applies to an agreement between an employer and another person under which the employer indemnifies the other person for any legal liability of the person to pay damages for injury sustained by a worker.

(2) The agreement does not prevent the insurer from adding the other person as a contributor under section 278A in relation to the employer’s liability or the insurer’s liability for the worker’s injury. 

(3) The agreement is void to the extent it provides for the employer, or has the effect of requiring the employer, to indemnify the other person for any contribution claim made by the insurer against the other person.

(4) In this section-

damages includes damages under a legal liability existing independently of this Act, whether or not within the meaning of section 10.’

The Bill also proposed to amend the definition of damages under section 10 of the WCRA, however, a motion in the parliament to change the definition was defeated.

For Parties 

This amendment will mean that if:

  • a common law claim has been made against an employer; and,
  • the employer agreed to indemnify another party for that party’s legal liability; and,
  • WorkCover Queensland brings a contribution claim against that party,

the party joined to the claim will be unable to enforce their contractual indemnity clause to neutralise the contribution claim.

In many claims, the addition of section 236B(3) will allow contribution claims to be made by WorkCover, with third parties constrained in their ability to enforce indemnities against employers. However, the application of section 236B in a claim will depend upon:

  • who the parties to the relevant agreement are; and
  • the wording of the indemnity.

For instance, in an agreement where:

  • the parent company of an employer grants indemnity to a party; and
  • the agreement was not between the ’employer’ and the other party,

but the employer is referred to as part of a ‘contractor group’ or otherwise in the agreement, then section 236B may not apply to the agreement. In such a case, an entity related to the employer (such as a parent company) may remain liable for the indemnity granted to the other party.

Otherwise, the new Section 236B(3) may not operate to defeat actions in contract against employers by other parties (e.g. for breach of warranty or, for breach of an obligation to insure).

Once enacted, the amendment will apply to existing claims; if a settlement for damages has not been agreed or, a trial has not commenced.

To read the Bill in full, click here. To read the Queensland Parliament’s third reading speech, click here.

BOOK A FREE CONSULTATION for advice and information about your rights and obligations in a workers’ compensation matter, by calling (07) 3067 3025 or contact us online.

Contact us

Contact Form

  • This field is for validation purposes and should be left unchanged.
Kate DenningWorkers’ compensation changes to affect contribution claims
Read more

Workers’ compensation changes to affect contractual indemnities

Workers’ compensation changes to affect contractual indemnities

Workers Compensation Qld – Workers Compensation Legislation Qld – Workers Compensation Lawyers Brisbane – Workers Compensation Law – Workers Compensation and Rehabilitation Act – Workers Compensation Insurance – Workers Compensation Scheme – Contractual Obligations – Contractual Indemnities – Contractual Interpretation Australia – Contractual Indemnification – Contractual Disputes – Workers Compensation Regulator

 

On 14 June 2016, the Queensland Parliament introduced the Workers’ Compensation and Rehabilitation (National Injury Insurance Scheme) Amendment Bill 2016 (Qld) (Bill).

The Bill

The Bill is part of a broader social reform which includes the establishment of the National Injury Insurance Scheme for Queenslanders, to commence from 1 July 2016.

The Bill proposes to restore the original policy intent of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) and provide certainty to stakeholders after recent Court decisions have interpreted certain provisions of the WCRA in ways that could adversely affect the operation of the scheme.

If passed, the legislation will prevent employers from securing cover under their workers’ compensation insurance policies for contractual indemnities they have given to third parties for damages payable to workers. In the first reading speech for the Bill, the Minister for Employment and Industrial Relations said:

‘The Bill prevents the contractual transfer of liability for injury costs from principal contractors or host employers to employers with a workers’ compensation insurance policy such as subcontractors or labour hire employers and clarifies that an insurer will not be liable to indemnify an employer for a liability to pay damages incurred by a third party contractor under a contractual arrangement.’

The Amendments and indemnities

The relevant sections of the Bill that will impact contractual liabilities are:

  • Clause 5: which proposes to amend the ‘Meaning of Damages’ in Section 10 of the WCRA to say:

‘(4) Further, a reference in subsection (1) to the liability of an employer does not include a liability to pay damages, for injury sustained by a worker, arising from an indemnity granted by the employer to another person for the other person’s legal liability to pay damages to the worker for the injury.’

  • And Clause 31: which will amend Chapter 5 of the WCRA as follows:

‘236B Liability of contributors

(1) This section applies to an agreement between an employer and another person under which the employer indemnifies the other person for any legal liability of the person to pay damages for injury sustained by a worker.

(2) The agreement does not prevent the insurer from adding the other person as a contributor under section 278A in relation to the employer’s liability or the insurer’s liability for the worker’s injury. 

(3) The agreement is void to the extent it provides for the employer, or has the effect of requiring the employer, to indemnify the other person for any contribution claim made by the insurer against the other person.

(4) In this section-

damages includes damages under a legal liability existing independently of this Act, whether or not within the meaning of section 10.’

For Employers

These amendments will mean that WorkCover Queensland will only be liable to indemnify an employer to the extent of the employer’s legal liability to the worker for damages under the WCRA. So, if an employer agrees to indemnify another party for damages beyond its legal liability under the WCRA, the workers’ compensation policy will not extend to cover those damages.

The changes may result in some employers exposed to liabilities for which they hold no insurance. However, in many claims, the addition of Section 236B(3) will allow contribution claims to be made by WorkCover, with third parties constrained in their ability to enforce indemnities against employers. What is unclear from the Bill and the WCRA, is whether an employer could secure cover for their liability to indemnify another party for ‘compensation’ under the WCRA (as opposed to ‘damages’). Also, the new Section 236B(3) may not operate to defeat actions in contract against employers by third parties (e.g. for breach of warranty or, for breach of an obligation to insure).

The industries that are most likely to be affected by the changes include: construction; mining; resources; and, transport. With these amendments, and the extension of the unfair contract terms regime to small businesses later this year, employers may wish to consider updating their service agreements to limit the risks to their business and follow current developments in the law.

The changes may see a rise in the number of employers requiring independent legal representation in common law claims. An employer who has agreed to indemnify another party may require independent legal advice about their contractual obligations, rights under the WCRA, the worker’s entitlements to damages under multiple regimes, apportionment and costs.

The Parliament has nominated the Finance and Administration Committee to consider the Bill.  To read the Bill in full, click here.  To read the Queensland Parliament’s first reading speech, click here.

BOOK A FREE CONSULTATION for advice and information about a workers’ compensation or contractual indemnity dispute, by calling (07) 3067 3025 or contact us online.

Contact us

Contact Form

  • This field is for validation purposes and should be left unchanged.
Kate DenningWorkers’ compensation changes to affect contractual indemnities
Read more

How to Detect Fraud in Personal Injury Claims

How to Detect Fraud in Personal Injury Claims

Fraud – Insurance Fraud – Fraud Qld – Detect Fraud – Fraudulent Misrepresentation – Insurance Fraud Investigation – Insurance Fraud Reporting – Insurance Fraud Cases – Insurance Fraud Penalties Qld – Insurance Fraud Definition – Dispute Insurance Claim

Insurance fraud has been estimated to account for about 10% of general insurance costs in Australia ($2B annually). This doesn’t take into account undetected fraud.

Some people may take the view that insurance fraud is a victim-less crime. But most would agree that money spent investigating, defending, paying or prosecuting fraudsters could be better used to reduce insurance premiums and pay genuine claims.

So what are some red flags that could suggest fraud in a personal injury claim? Here are some that we’ve identified:

Late claim

If a claim is started close to the expiration of a Plaintiff’s limitation period, then questions will arise about why the Plaintiff has taken so long to bring their claim. Check what treatment the Plaintiff has had since the event. Consider the Plaintiff’s current circumstances. Has the Plaintiff had a change in their employment status, medical advice, legal representation or personal circumstances? One or more of these things may explain why the claim has been brought late.

Delay in medical treatment

A delay in seeking medical treatment after an event is usually detected by treating health care providers and medico-legal experts. The longer that a Plaintiff delays treatment for an injury, the more difficult it may be to prove that the incident caused it. Of course, some medical conditions are characterised by a delayed onset of symptoms. So consider how similar injuries are diagnosed and treated.

Just started a job

A Plaintiff injured in a workplace just after they’ve commenced employment may come under more scrutiny than a longstanding employee. Consider the Plaintiff’s employment history. Did the Plaintiff start the job after a long period of unemployment? Were they adequately trained and supervised? Did the Plaintiff’s employment history suggest they were capable of performing the task?

Project coming to an end

If a claim is made by a Plaintiff working on a project that is approaching finalisation, the Defendant may be suspicious of the Plaintiff’s motivation for bringing their claim. Has the Plaintiff brought a claim in similar circumstances in the past? Was the Plaintiff facing other disciplinary action from the employer? If not, the Defendant’s suspicions may lead nowhere.

Retirement approaching

Claims by Plaintiffs close to retirement age will usually be managed with caution. If a Plaintiff goes from full-time to part-time employment after their injury, check if there were social security or superannuation incentives for doing so. Investigate the Plaintiff’s retirement plans and financial commitments. If a Plaintiff worked in a physical occupation, are there statistics available about the average retirement age of men/women doing that work.

Claims history

It goes without saying that a history of numerous claims will be of concern to a Defendant. Determine the seriousness of the injuries in those past claim/s and their relevance to the current one.

No witness

If there were no witnesses to an incident, then there is no one to verify a Plaintiff’s account. However, the lack of a witness will not necessarily prevent a Plaintiff from succeeding in their claim. Check whether documentary evidence could support the Plaintiff’s version. Did the Plaintiff immediately report the injury? Has the Plaintiff’s description of the incident stayed consistent over time?

No reporting

Defendants are right to be suspicious of claims for injuries that were not reported when they occurred, particularly where a workplace policy requires all incidents and injuries to be reported. Did the Plaintiff report their injury to health care providers and not the Defendant? If so, this may be adequate. Did the Plaintiff later describe the incident as involving a ‘sudden’ or ‘immediate’ onset of pain? If so, why didn’t they report their injury?

Limited treatment

How much treatment has the Plaintiff received for their injuries since the event? Check whether the Plaintiff’s records contain references to other conditions. Is there limited references to the injuries for which damages are claimed? If other conditions dominate the treating records or a Plaintiff has had little treatment, then Defendants may query the extent of the impact that the injury has had on the Plaintiff’s life.

Holidays

It’s a widely held belief in personal injury litigation that: a Plaintiff able to travel; is also able to work. Defendants will be suspicious of Plaintiffs that go on holidays after suffering an injury, which is apparently so serious, that they cannot work. If possible, find out when the Plaintiff made their travel arrangements. Was it before or after the event? What kind of holiday did the Plaintiff go on?

For Defendants

Defendants should use red flags like these to detect fraud and limit their exposure to damages, legal costs and rises in insurance premiums. The sooner that fraud is detected, the faster that parties can dispose of a claim.

However, these red flags do feature in lots of personal injuries claims. So, one of these in isolation doesn’t necessarily mean that a Plaintiff is bringing a fraudulent claim. It may simply be that the Plaintiff needs to offer a satisfactory explanation.

BOOK A FREE CONSULTATION for advice and information about fraud in a personal injury matter, by calling (07) 3067 3025 or contact us online.

Contact us

Contact Form

  • This field is for validation purposes and should be left unchanged.
Kate DenningHow to Detect Fraud in Personal Injury Claims
Read more

Dangerous Recreational Activities | Contract Claims & Intentional Torts

Dangerous Recreational Activities | Contract Claims & Intentional Torts

Dangerous Recreational Activities – Dangerous Recreational Activities Qld – Dangerous Recreational Activities Civil Liability Act – Dangerous Recreational Activities CLA – Dangerous Recreational Activities Cases – Dangerous Recreational Activities Examples – What is a dangerous recreational activity? – Duty of Care Legislation Qld

What is a dangerous recreational activity?

Section 18 of the Civil Liability Act 2003 (Qld) (CLA QLD) defines a dangerous recreational activity as:

‘an activity engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to a person’.

Civil Liability Act 2003 (Qld)

The CLA QLD limits the ability of injured Plaintiffs to recover damages in negligence for personal injuries that arise out of dangerous recreational activities.

Under section 19 of the CLA QLD, a person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by a person.

Section 17 of the CLA QLD states:

’17  Application of div

This division applies only in relation to liability in negligence for harm to a person resulting from a dangerous recreational activity engaged in by the plaintiff.’

But proving that a Plaintiff was engaged in a dangerous recreational activity under the CLA QLD isn’t always straightfoward. A decision of the Supreme Court of Queensland last year highlighted an issue for Defendants seeking to raise the defence.

Ireland v B & M Outboard Repairs

In Ireland v B& M Outboard Repairs [2015] QSC 084, the Defendants argued that the Plaintiff was engaged in a dangerous recreational activity.

The Court rejected the Defendant’s submission that section 19 of the CLA QLD applied; principally, because the activity did not involve an obvious risk. However, the Court made an additional comment that section 19 would not apply because section 17 refers to liability in negligence only and not, to an action for breach of contract.

Liability in Negligence

Unlike the Civil Liability Act NSW (2002) (CLA NSW), the CLA QLD does not define the word ‘negligence’.

Without a definition, one might assume the phrase ‘liability in negligence’ means an action in negligence and not, an action in contract or, an intentional tort. In the first reading speech for the Civil Liability Bill 2003 (Qld), Parliament said that the dangerous recreational activities provisions would change the ‘conventional law of negligence’ – as opposed to the law of contract or, the law of torts.

Considerations

Plaintiffs may frame their claims to avoid the dangerous recreational activity defence under the CLA QLD. However, the interpretation of section 17 is yet to be judicially determined. The comments in Ireland were in obiter. That said, if Ireland’s reasoning is applied, Defendants will not be assisted by section 19 of the CLA QLD against a claim in contract.

Parties to claims involving recreational activities which may be ‘dangerous’ may wish to consider the following:

  • the application of the obvious risk provisions under the CLA QLD
  • any contract between the parties
  • whether the contract between the parties was for the dangerous recreational activity itself (compared with transportation or equipment hire)
  • the application of Commonwealth legislation such as the Competition and Consumer Act 2010 (Cth) to the claim
  • any defects or flaws in equipment in use
  • signage, advertising and manufacturers specifications or notifications
  • facts suggesting an intentional tort
  • insurance coverage issues arising from an action in contract against the Defendant or an intentional tort

BOOK A FREE CONSULTATION for advice and information about a personal injury matter by calling (07) 3067 3025 or contact us online.

Contact us

Contact Form

  • This field is for validation purposes and should be left unchanged.
Kate DenningDangerous Recreational Activities | Contract Claims & Intentional Torts
Read more

Section 54 Insurance Contracts Act – what’s not an ‘act’?

Section 54 of the Insurance Contracts Act – what’s not an ‘act’?

Section 54 Insurance Contracts Act – Section 54 Insurance Contracts Act Summary – Section 54 ICA – Maxwell v Highway Hauliers Pty Ltd

Case note: Allianz Insurance Ltd v Inglis [2016] WASCA 25

This was an appeal by Allianz Insurance Ltd (Allianz) to the Court of Appeal (WA) (Court). The case concerned a preliminary question about the application of section 54 of the Insurance Contracts Act 1984 (Cth), based on an agreed set of facts.

The question to be decided was whether, on the proper construction of an Allianz Sure Cover Plus home insurance policy (Allianz Policy), Allianz was required to indemnify its Insureds for their liability to the Defendants.

The Insureds succeeded at District Court level. Our summary of that decision is here. Allianz sought leave to appeal that decision to the Court of Appeal (WA) (Court).

Section 54 Insurance Contracts Act

Section 54 of the Insurance Contracts Act 1984 (Cth) states:

‘(1)  Subject to this section, where the effect of a contract of insurance would, but for this section, be that the insurer may refuse to pay a claim, either in whole or in part, by reason of some act of the insured or of some other person, being an act that occurred after the contract was entered into but not being an act in respect of which subsection (2) applies, the insurer may not refuse to pay the claim by reason only of that act but the insurer’s liability in respect of the claim is reduced by the amount that fairly represents the extent to which the insurer’s interests were prejudiced as a result of that act.

(2)  Subject to the succeeding provisions of this section, where the act could reasonably be regarded as being capable of causing or contributing to a loss in respect of which insurance cover is provided by the contract, the insurer may refuse to pay the claim.’

The Facts

The Plaintiff, Ms Georgia Inglis (Georgia) (aged 10) alleges that she was run over by a ride-on lawnmower operated by the First Defendant, Mr Stephen Sweeney (Stephen) (aged 11).

Georgia is the daughter of Mr Stuart Inglis and Mrs Linda Inglis (Georgia’s parents).  Mr Stuart Inglis owned the ride-on lawnmower.  Georgia lived with her parents.  Georgia’s parents were named insureds under the Allianz Policy.

It is alleged that on 17 October 2004, Mr James Inglis (James) (aged 12), Georgia’s brother, rode the lawnmower from Georgia’s parents’ house, to the Second and Third Defendants’ house.  The Second and Third Defendants are the parents of Stephen.

Stephen ran over Georgia in a game that involved Georgia being towed behind Stephen on the ride-on lawnmower. Georgia brought claims against the Defendants. The Defendants brought claims against Mr Stuart Inglis and Georgia’s brother, James (the Insureds).  The Insureds brought claims against Allianz, for indemnity under the Allianz Policy.

The Allianz Policy

Insuring clause

The Allianz Policy contained the following clause relating to cover for injury to other people:

‘… We will cover your legal liability for payment of compensation in respect of:

  • death, bodily injury or illness…’

Exclusion clause

The Allianz Policy contained an exclusion clause which read:

‘What you are not covered for:

  1. We will not cover your legal liability for: …
  2. injury to any person who normally lives with you, or damage to their property;’

Allianz denied indemnity under the Allianz Policy.

The Submissions

Allianz submitted that the expression ‘a person who normally lives with you’ did not contain or constitute an ‘act’ under section 54(1) but instead, was a state of affairs or, the status or description of a person.

It was the submission of the Insureds that the act must have occurred or (if continuous) be occurring at the time of the accident. The Insureds argued that this was mandated by the word ‘lives’ in the expression, ‘a person who normally lives with you’. The Insureds did not suggest any other ‘act’ engaged section 54(1).

The Findings

In the judgment dated 3 February 2016, the Court allowed the appeal by Allianz, finding:

  1. ‘Act’ means something done or being done by a person. It is different from a state of affairs or the result of an act. Assistance in understanding the distinction between these things may be drawn from criminal law.
  2. The fact that a ‘person normally lives with’ an insured does not constitute an ‘act’ within the meaning of section 54(1).

The Court rejected the argument by Allianz that the Insureds’ claims were in respect of liability of a kind not dealt with by the Allianz Policy.

Considerations

It remains difficult for insurers to establish that a relevant liability falls outside of the scope of cover under a policy.

However, the argument put forward by Allianz that an ‘act’ under section 54 of the Insurance Contracts Act 1984 (Cth) is not:

  • a state of affairs;
  • the status of a person;
  • the description of a person,

could be used in support of an insurer’s decision to exclude cover in a variety of circumstances.

BOOK A FREE CONSULTATION for advice and information about your insurance problem by calling (07) 3067 3025 or contact us online.

Contact us

Contact Form

  • This field is for validation purposes and should be left unchanged.
Kate DenningSection 54 Insurance Contracts Act – what’s not an ‘act’?
Read more

InDefence covers legal and technical issues in a general way. Changes in circumstances or the law may affect the completeness or accuracy of the information published. InDefence is not designed to express opinions on specific cases, to provide legal advice or to establish a relationship of client and lawyer between Denning Insurance Law and the reader, or any third party. No person should act or refrain from acting solely on the basis of this publication. You should seek legal advice particular to your circumstances before taking action on any issue dealt with in this blog.