Insurance and transport law : controlling insurance contract terms : Section 54 of the Insurance Contracts Act – compliance, recovery and accountability

Commonwealth legislation covering insurance contracts contains numerous provisions designed to control the operation and effect of terms in life and general insurance contracts. For example, the Life Insurance Act 1995 (Cth) contains provisions regulating the consequences attendant upon incorrect statements in proposals [1] and non-payment of premiums, [2] provides that an insurer may only exclude liability in the case of suicide if it has made express provision for such contingency in its policy, [3] and severely restricts the efficacy of conditions as to war risks. [4] The Insurance Contracts Act 1984 (Cth) is even more intrusive and has a major impact upon contractual provisions in the general insurance field. It is beyond the scope of this note to explore all of these provisions in any detail but examples of controls and constraints imposed upon the operation and effect of contractual provisions include the following. A party is precluded from relying upon a provision in a contract of insurance if such reliance would amount to a failure to act with the utmost good faith. [5] Similarly, a policy provision which requires differences or disputes arising out of the insurance to be submitted to arbitration is void, [6] unless the insurance is a genuine cover for excess of loss over and above another specified insurance. [7] Similarly clause such as conciliation clauses, [8] average clauses, [9] and unusual terms [10] are given qualified operation. [11] However the provision in the Insurance Contracts Act that has the greatest impact upon, and application to, a wide range of insurance clauses and claims is s 54. This section has already generated a significant volume of case law and is the focus of this note. In particular this note examines two recent cases. The first, Johnson v Triple C Furniture and Electrical Pty Ltd [2012] 2 Qd R 337, (hereafter the Triple C case), is a decision of the Queensland Court of Appeal; and the second, Matthew Maxwell v Highway Hauliers Pty Ltd [2013] WASCA 115, (hereafter the Highway Hauliers case), is a decision of the Court of Appeal in Western Australia. This latter decision is on appeal to the High Court of Australia. The note considers too the decision of the New South Wales Court of Appeal in Prepaid Services Pty Ltd v Atradius Credit Insurance NV [2013] NSWCA 252 (hereafter the Prepaid Services case).These cases serve to highlight the complex nature of s 54 and its application, as well as the difficulty in achieving a balance between an insurer and an insured's reasonable expectations.

What Costs Accountability? Financial Accountability, Mission and Fundraising in Nonprofits

Although greater calls for accountability have been articulated by academics, policy makers and donors in the recent years, a stream of thought has been questioning where the giving of an account should stop. In conveying the limits to the giving of an account (Messner, 2009) and associated transparency (Roberts, 2009), critical accounting scholars have also pointed to as yet unresolved contradictions intrinsic to accountability (McKernan, 2012), especially when it comes to be operationalised (Joannides, 2012). The impact of accountability's discharging on nonprofits' strategy or operations has to date been underexplored (Dhanni & Connelly, 2012; Tucker & Parker, 2013). Accordingly, this chapter seeks to contribute to this body of literature on the consequences of accountability on fundraising strategies in nonprofits, questioning whether accountability practice may hamper the effectiveness of the nonprofit sector by restraining the fundraising profession. Our chapter seeks to fill a dual theoretical gap. Firstly, only a number of publications have investigated the interplay between accountability and the making of organisational strategy (Parker, 2002, 2003b, 2011, 2012, 2013; Tucker & Parker, 2013). Therefore, we seek to fill a theoretical gap as to the impact of accountability on the conduct of straegic operations. By questioning whether accountability hampers fundraising strategy in non-profits we are also contributing to the literature balancing accountability and the mission. In this literature, it appears that money and the mission are often conflictual, financial managers being often seen by mission advocates as guardians shielding organisational resources (Chiapello, 1993, 1998; Lightbody, 2000, 2003). Another approach shows that making nonprofits accountable to capital and multiple stakeholders (donors, public authorities) leaders to changes in organisational culture (O'Dwyer & Unerman, 2007; Unerman & Bennett, 2004; Underman & O'Dwyer, 2006a, 2006b, 2008). By examining a small number of cases we show how accountability practices result in fundraising adapting and adjusting under such external pressures and constraints. We also show accountability systems may have a direct impact on the conduct of strategic operations, which might hamper mission conduct.

How costs change with infection prevention efforts

Purpose of review: To describe articles since January 2013 that include information on how costs change with infection prevention efforts. Recent findings: Three articles described only the costs imposed by nosocomial infection and so provided limited information about whether or not infection prevention efforts should be changed. One article was found that described the costs of supplying alcohol-based hand run in low-income countries. Eight articles showed the extra costs and cost savings from changing infection prevention programmes and discussed the health benefits. All concluded that the changes are economically worthwhile. There was a systematic review of the costs of methicillin-resistant Staphylococcus aureus control programmes and a methods article for how to make cost estimates for infection prevention programmes. Summary: The balance has shifted away from studies that report the high cost of nosocomial infections toward articles that address the value for money of infection prevention. This is good as simply showing a disease is high cost does not inform decisions to reduce it. More research, done well, on the costs of implementation, cost savings and change to health benefits in this area needs to be done as many gaps exist in our knowledge.

Marginal costs of hospital-acquired conditions : information for priority-setting for patient safety programmes and research

Objective: To estimate the relative inpatient costs of hospital-acquired conditions. Methods: Patient level costs were estimated using computerized costing systems that log individual utilization of inpatient services and apply sophisticated cost estimates from the hospital's general ledger. Occurrence of hospital-acquired conditions was identified using an Australian ‘condition-onset' flag for diagnoses not present on admission. These were grouped to yield a comprehensive set of 144 categories of hospital-acquired conditions to summarize data coded with ICD-10. Standard linear regression techniques were used to identify the independent contribution of hospital-acquired conditions to costs, taking into account the case-mix of a sample of acute inpatients (n = 1,699,997) treated in Australian public hospitals in Victoria (2005/06) and Queensland (2006/07). Results: The most costly types of complications were post-procedure endocrine/metabolic disorders, adding AU$21,827 to the cost of an episode, followed by MRSA (AU$19,881) and enterocolitis due to Clostridium difficile (AU$19,743). Aggregate costs to the system, however, were highest for septicaemia (AU$41.4 million), complications of cardiac and vascular implants other than septicaemia (AU$28.7 million), acute lower respiratory infections, including influenza and pneumonia (AU$27.8 million) and UTI (AU$24.7 million). Hospital-acquired complications are estimated to add 17.3% to treatment costs in this sample. Conclusions: Patient safety efforts frequently focus on dramatic but rare complications with very serious patient harm. Previous studies of the costs of adverse events have provided information on ‘indicators’ of safety problems rather than the full range of hospital-acquired conditions. Adding a cost dimension to priority-setting could result in changes to the focus of patient safety programmes and research. Financial information should be combined with information on patient outcomes to allow for cost-utility evaluation of future interventions.

Accounting for management costs in sensitivity analyses of matrix population models

Traditional sensitivity and elasticity analyses of matrix population models have been used to inform management decisions, but they ignore the economic costs of manipulating vital rates. For example, the growth rate of a population is often most sensitive to changes in adult survival rate, but this does not mean that increasing that rate is the best option for managing the population because it may be much more expensive than other options. To explore how managers should optimize their manipulation of vital rates, we incorporated the cost of changing those rates into matrix population models. We derived analytic expressions for locations in parameter space where managers should shift between management of fecundity and survival, for the balance between fecundity and survival management at those boundaries, and for the allocation of management resources to sustain that optimal balance. For simple matrices, the optimal budget allocation can often be expressed as simple functions of vital rates and the relative costs of changing them. We applied our method to management of the Helmeted Honeyeater (Lichenostomus melanops cassidix; an endangered Australian bird) and the koala (Phascolarctos cinereus) as examples. Our method showed that cost-efficient management of the Helmeted Honeyeater should focus on increasing fecundity via nest protection, whereas optimal koala management should focus on manipulating both fecundity and survival simultaneously. These findings are contrary to the cost-negligent recommendations of elasticity analysis, which would suggest focusing on managing survival in both cases. A further investigation of Helmeted Honeyeater management options, based on an individual-based model incorporating density dependence, spatial structure, and environmental stochasticity, confirmed that fecundity management was the most cost-effective strategy. Our results demonstrate that decisions that ignore economic factors will reduce management efficiency. ©2006 Society for Conservation Biology.

Costs and benefits of ivory-billed woodpecker re-discovery

Several years ago, the purported re-discovery of the ivory-billed woodpecker (Campephilus principalis) in eastern Arkansas generated lively discussion in renowned scientific journals. The debate concerned both the central question of whether the bird videotaped in April 2004 really was an ivorybilled woodpecker (eg Fitzpatrick et al. 2005; Sibley et al. 2006) and the controversy around the resulting species recovery plan and its costs (McKelvey et al. 2008; Dalton 2010): was $14 million pointlessly spent?

Depression in Working Adults: Comparing the Costs and Health Outcomes of Working When Ill

Objective Working through a depressive illness can improve mental health but also carries risks and costs from reduced concentration, fatigue, and poor on-the-job performance. However, evidence-based recommendations for managing work attendance decisions, which benefit individuals and employers, are lacking. Therefore, this study has compared the costs and health outcomes of short-term absenteeism versus working while ill (“presenteeism”) amongst employed Australians reporting lifetime major depression. Methods Cohort simulation using state-transition Markov models simulated movement of a hypothetical cohort of workers, reporting lifetime major depression, between health states over one- and five-years according to probabilities derived from a quality epidemiological data source and existing clinical literature. Model outcomes were health service and employment-related costs, and quality-adjusted-life-years (QALYs), captured for absenteeism relative to presenteeism, and stratified by occupation (blue versus white-collar). Results Per employee with depression, absenteeism produced higher mean costs than presenteeism over one- and five-years ($42,573/5-years for absenteeism, $37,791/5-years for presenteeism). However, overlapping confidence intervals rendered differences non-significant. Employment-related costs (lost productive time, job turnover), and antidepressant medication and service use costs of absenteeism and presenteeism were significantly higher for white-collar workers. Health outcomes differed for absenteeism versus presenteeism amongst white-collar workers only. Conclusions Costs and health outcomes for absenteeism and presenteeism were not significantly different; service use costs excepted. Significant variation by occupation type was identified. These findings provide the first occupation-specific cost evidence which can be used by clinicians, employees, and employers to review their management of depression-related work attendance, and may suggest encouraging employees to continue working is warranted.

Professional indemnity insurance, performance and pre-emptive negligence: The impact of ‘non-claims’

As part of Australian licensing requirements professional valuers are required to maintain a level of professional indemnity insurance. A core feature of any insurance cover is that the insured has an obligation to notify their insurer of both actual and potential claims. An actual claim clearly will impact upon future policies and premiums paid. Notification of a potential claim, whether or not the notification crystallises into an actual claim, also can have an impact upon the insured’s claims history and premiums. The Global Financial Crisis continues to impact upon business practices and land transactions both directly and indirectly. The Australian valuation profession is not exempt from this impact. One example of this ongoing impact is reflected in a worrying practice engaged in by some financial institutions in respect of their loan portfolios. That is, even though the mortgagor is not in default, some institutions are pre-emptively issuing notices of demand regarding potential losses. Further, in some instances such demands are based only on mass appraisal valuations without specific consideration being given to the individual lot in question. The author examines the impact of this practice for the valuation profession and seeks to provide guidance for the appropriate handling of such demands.

Public private partnership infrastructure delivery: Benefits and costs for society

This research provides additional knowledge on the benefits and costs to society, in particular of road transport procured through Public-Private Partnership (PPP) arrangements. Currently, the public sector comparator (PSC) and cost-benefit analysis (CBA) used to evaluate and measure the benefits and costs of PPP are limited in their capacity to predict and forecast long-term events. PPP is attractive to governments due to the non-upfront payment, perceived value for money, and risk allocation and transfer to the private investor. However, public sector remains the guarantor, and under-writer of the private investor's loan from financial institutions and other voluntary risks which are unlimited to future compensatory claims. The new knowledge from this research is the introduction of a framework capable of evaluating, and measuring the associated PPP benefits, as well as the costs, effects, and impacts to society which are protracted and sporadic by nature.

Valuers, liability and insurance obligations revisited

- Overview of negligence from the valuer’s perspective - Consideration of defences - Impact of lender conduct - Insurance obligations and impact for the valuer

Hospital infection control units: Staffing, costs, and priorities

Background: This article describes infection prevention and control professionals’ (ICPs’) staffing levels, patient outcomes, and costs associated with the provision of infection prevention and control services in Australian hospitals. A secondary objective was to determine the priorities for infection control units. Methods: A cross-sectional study design was used. Infection control units in Australian public and private hospitals completed a Web-based anonymous survey. Data collected included details about the respondent; hospital demographics; details and services of the infection control unit; and a description of infection prevention and control-related outputs, patient outcomes, and infection control priorities. Results: Forty-nine surveys were undertaken, accounting for 152 Australian hospitals. The mean number of ICPs was 0.66 per 100 overnight beds (95% confidence interval, 0.55-0.77). Privately funded hospitals have significantly fewer ICPs per 100 overnight beds compared with publicly funded hospitals (P < .01). Staffing costs for nursing staff in infection control units in this study totaled $16,364,392 (mean, $380,566). Infection control units managing smaller hospitals (<270 beds) identified the need for increased access to infectious diseases or microbiology support. Conclusion: This study provides valuable information to support future decisions by funders, hospital administrators, and ICPs on service delivery models for infection prevention and control. Further, it is the first to provide estimates of the resourcing and cost of staffing infection control in hospitals at a national level. Copyright

A theoretical framework for reducing tendering costs in the procurement of infrastructure projects

Purpose of this paper One way in which the tendering process can be further improved is by reviewing and clarifying the high costs that participants face during the course of the tendering phase. The study aims to provide project teams working in construction tender preparation a clear picture of what to expect when tendering for infrastructure projects. Design/methodology/approach Firstly, a review of current literature on tendering in infrastructure projects is conducted to identify the associated costs affecting traditional and PPP procurements as well as the potential measures contributing to tendering cost-reduction. A theoretical framework and its corresponding research hypotheses, which are based on the literature reviewed, are then proposed. An industry-wide questionnaire survey is currently under design to solicit industry practitioners’ views on tendering costs and the associated tendering cost-reduction measures. The data collected in the survey will subject to statistical analysis to test the proposed research hypotheses, which will be reported in a forthcoming paper. Findings and value The direct and indirect costs in public-private procurement have been identified and have been categorised into internal and external costs arising from working on tender submissions. A theoretical framework, mainly composed of five mechanisms of cost reduction, has been proposed and will be tested in a forthcoming industry-wide questionnaire survey. Originality/value of paper The findings are expected to lead to a transparent tendering process in infrastructure procurement, in which there is increased engagement from the private sector as well as an increase in competitive tendering.

Receivers' future liability for costs

In Juniper Property Holdings No.15 Pty Ltd v Caltabiano [2015] QSC 95, Jackson J considered what he described as a 'novel point' as to whether the court had jurisdiction to make a determination of the liability of receivers and managers appointed to the plaintiff to pay any costs orders that may be made in favour of the defendant.

Costs assessor selection: A question of timing, or cost?

In Lessbrook Pty Ltd (in liq) v Whap; Stephen; Bowie; Kepa & Kepa [2014] QCA 63 the Queensland Court of Appeal dealt with significant questions of general application relating to the appointment of assessors to conduct an assessment of costs under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).