Insurance contract disclosure – an uncertain balance

This article canvasses recent case law adjudicating the uneasy disclosure balance between the interests of the insurer and the insured in the process of transacting an insurance contract. It examines also the consequences of non-disclosure and misrepresentation and whether the avowed legislative intent — that the liability of the insurer in respect of a claim is to be reduced to the amount that would place the insurer in the position it would have been had the non-disclosure or misrepresentation not occurred — is being achieved in practice. As there is no doubt as to who bears the onus of proof as to non-disclosure or misrepresentation it is surprising that insurers continue to flounder in this regard in relation to underwriting guidelines and adherence to them. The article reviews recent case law in this context and stresses that an insurer wishing to preserve its capacity to avoid liability on the basis that it would not have entered into a contract at all had the true situation been known to it must maintain detailed underwriting guidelines supported by consistent adherence to those guidelines. Recent case law also emphasises that the insurer must provide clear and cogent admissible evidence from appropriate personnel and officers of the company to discharge its onus.

J.W.Lindt’s Colonial man and Aborigine image from the GRAFTON ALBUM : “On chemistry and optics all does not depend, art must with these in triple union blend”

J.W.Lindt’s Colonial man and Aborigine image from the GRAFTON ALBUM: “On chemistry and optics all does not depend, art must with these in triple union blend” (text from J.W. Lindt’s photographic backing card) In this paper, I follow an argument that Lindt held a position in his particular colonial environment where he was simultaneously both an insider and an outsider and that such a position may be considered prerequisite in stimulating exchange. A study of the transition of J.W. Lindt in Grafton, N.S.W. in the 1860s from a traveller to a migrant and subsequently to a professional photographer, as well as Lindt’s photographic career, which evolved through strategic action and technical approaches to photography, bears witness to his cultural relativity. One untitled photograph from this period of work constructs a unique commentary of Australian colonial life that illustrates a non-hegemonic position, particularly as it was included in one of the first albums of photographs of Aborigines that Lindt gifted to an illustrious person (in this case the Mayor of Grafton). As in his other studio constructions, props and backdrops were arranged and sitters were positioned with care, but this photograph is the only one in the album that includes a non-Aborigine in a relationship to an Aborigine. An analysis of the props, technical details of the album and the image suggests a reconciliatory aspect that thwarts the predominant attitudes towards Aborigines in the area at that time.