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.

Methodology to predict the safety performance of rural multilane highways [Final Report for NCHRP Project 17-29]

The objective of this research is to develop a methodology that predicts the safety performance of various elements considered in the planning, design, and operation of nonlimited- access rural multilane highways.

Male and female cyclist and driver perceptions of crash risk

Many drivers and non-cyclists perceive cycling as an extremely risky activity with women in particular being concerned about the risk of injury. The low rates of cycling participation by women pose a threat to the achievement of government targets for cycling participation and restrict the potential transport, health and environmental benefits that increased levels of cycling could provide. This study seeks to extend earlier research in gender and cycling by comparing the risks perceived by female and male cyclists and drivers in specific on-road situations while accounting for other potentially gender-related factors such as travel patterns and experience, perceived skill, and risk taking behaviors. In an online survey, 444 regular cyclists and 151 (non-cyclist) car drivers rated the level of risk in six situations: Failing to yield; Going through a red light; Not signaling when turning; Swerving; Tailgating; and Not checking traffic. The study found that the higher levels of risk perceived by women are not completely accounted for by differences in cycling patterns or perceptions of skill. Compared to their male counterparts, female cyclists and car drivers had similarly elevated perceptions of risk suggesting that these gender differences are not specific to cycling, but reflect wider differences in risk perception. Not all of the gender differences were consistent across cyclists and drivers. Higher levels of perceived skill were evident for male cyclists but not for male car drivers. Further research is needed to explore the robustness and interpretation of this finding.

Analysis of construction dispute review boards

This paper presents the results of a research project undertaken to assess the impact of DRBs on the construction program of a large scale highway agency. Three dimensions of DRB impact were assessed: (1)influence on project cost and schedule performance, (2) effectiveness of DRBs in preventing and resolving construction disputes, and (3) costs of DRB implementation. The analyses encompass data from approximately 3,000 projects extending over a 10 year period (2000-2009).

Intellectual property and global warming: Climate justice

Engaging in a close analysis of legal and political discourse, this chapter considers conflicts over intellectual property and climate change in three key arenas: climate law; trade law; and intellectual property law. In this chapter, it is argued that there is a need to overcome the political stalemates and deadlocks over intellectual property and climate change. It is essential that intellectual property law engage in a substantive fashion with the matrix of issues surrounding fossil fuels, clean technologies, and climate change at an international level. First, this chapter examines the debate over intellectual property and climate change under the auspices of the United Nations Framework Convention on Climate Change 1992, and the establishment of the UNFCCC Climate Technology Centre and Network. It recommends that the technology mechanism should address and deal with matters of intellectual property management and policy. Second, the piece examines the discussion of global issues in the World Intellectual Property Organization, WIPO GREEN. It supports the proposal for a Global Green Patent Highway to allow for the fast-tracking of intellectual property applications in respect of green technologies. Third, the chapter investigates the dispute in the TRIPS Council at the World Trade Organization over intellectual property, climate change, and development. This section focuses upon the TRIPS Agreement 1994. This chapter calls for a Joint Declaration on Intellectual Property and Climate Change from the UNFCCC, WIPO, and the WTO. The paper concludes that intellectual property should be reformed as part of a larger effort to promote climate justice. Rather than adopt a fragmented, piecemeal approach in various international institutions, there is a need for a co-ordinated and cohesive response to intellectual property in an age of runaway, global climate change. Patent law should be fossil fuel free. Intellectual property should encourage research, development, and diffusion of renewable energy and clean technologies. It is submitted that intellectual property law reform should promote climate justice in line with Mary Robinson’s Declaration on Climate Justice 2013.

International copyright law: A book review

n his 1994 book, Copyright's Highway, Paul Goldstein made the telling prophecy: The celestial jukebox may also portend more revolutional changes in international copyright markets. As the celestial jukebox disseminates information and entertainment over the air and without regard for national boundaries, the importance of the nation-state as a traditional guarantor of copyright may be replaced by international institutions such as the newly established World Trade Organization. In retrospect, it was an accurate prediction. The celestial jukebox has shown little respect for national boundaries. In particular, ephemeral file-sharing programs such as Napster, Freenet and Filetopia have posed difficulties for copyright law. International treaties have taken on larger significance and international institutions such as the World Intellectual Property Organization and World Trade Organization have assumed a greater role in regulating international copyright markets.

Effect of upstream traffic signal on capacity of a downstream TWSC intersection

This paper investigates the platoon dispersion model that is part of the 2010 Highway Capacity Manual that is used for forecasting downstream traffic flows for analyzing both signalized and TWSC intersections. The paper focuses on the effect of platoon dispersion on the proportion of time blocked, the conflicting flow rate, and the capacity flow rate for the major street left turn movement at a TWSC intersection. The existing HCM 2010 methodology shows little effect on conflicting flow or capacity for various distances downstream from the signalized intersection. Two methods are suggested for computing the conflicting flow and capacity of minor stream movements at the TWSC intersection that have more desirable properties than the existing HCM method. Further, if the existing HCM method is retained, the results suggest that the upstream signals model be dropped from the HCM method for TWSC intersections.

Evaluation of safety treatments at roadwork zones

A major 3-year research project to improve safety at roadworks has recently been completed by the Centre for Accident Research and Road Safety – Queensland (CARRS-Q) and industry partners. This project involved developing strategies to mitigate roadwork hazards including speeding. This paper presents three on-road evaluation studies on the effectiveness of some current and new safety treatments: use of pilot vehicles, variable message signage (VMS), police enforcement with and without VMS, and remote-controlled traffic control devices. The speed reduction potential of pilot vehicles was evaluated at a highway site. Results showed that pilot vehicles reduced average speeds within the work area, but not at a downstream location. Combinations of VMS and police enforcement were evaluated at a motorway site and results showed that police enforcement accompanied with VMS had greater effects on reducing speeds than either of these treatments alone. Three new remote-controlled traffic control devices—red and amber lights, red light and amber arrow, and a robotic stop/slow sign—were evaluated at a highway site. Results showed that the red light and amber arrow option produced consistent effects on the speeds at the approach to traffic controls and at a location inside the work area. This paper presents the first rigorous evaluations of these roadwork safety treatments in Queensland.

Accountability of insurers under s 54: Striking the balance between commerciality and consumer protection

Section 54 of the Insurance Contracts Act 1984 (Cth) continues to occupy a prominent position in insurance-related litigation. This section which imposes a concept of causation, or prejudice to the insurer, to restrict an insurer’s reliance upon contractual terms to avoid liability for particular claims, is often before the courts. This note focuses upon the recent High Court of Australia decision in Maxwell v Highway Hauliers Pty Ltd [2014] HCA 33.

Evaluation of a Drunk Driving Warning System

The Drunk Driving Warning System is an alcohol interlock based on performance of the Critical Tracking Task (CTT). An evaluation was undertaken to determine CTT sensitivity to blood alcohol concentration (BAC), particularly at .05 g/100 ml. Subjects were 36 males in 3 age groups (18, 21 to 25, 35 years and above) divided into 2 alcohol consumption categories ("light" and "heavy"), and scored on 4 training and 2 test days (one alcohol and one placebo). The CTT performance declined as BAC increased and was significantly impaired at .05 BAC. However, performance was too variable for in-vehicle use. Age and alcohol consumption pattern were without effect.

Finite element modelling of lamb wave propagation in prestress concrete and effect of the prestress force on the wave’s characteristic

In order to assess the structural reliability of bridges, an accurate and cost effective Non-Destructive Evaluation (NDE) technology is required to ensure their safe and reliable operation. Over 60% of the Australian National Highway System is prestressed concrete (PSC) bridges according to the Bureau of Transport and Communication Economics (1997). Most of the in-service bridges are more than 30 years old and may experience a heavier traffic load than their original intended level. Use of Ultrasonic waves is continuously increasing for (NDE) and Structural Health Monitoring (SHM) in civil, aerospace, electrical, mechanical applications. Ultrasonic Lamb waves are becoming more popular for NDE because it can propagate long distance and reach hidden regions with less energy loses. The purpose of this study is to numerically quantify prestress force (PSF) of (PSC) beam using the fundamental theory of acoustic-elasticity. A three-dimension finite element modelling approach is set up to perform parametric studies in order to better understand how the lamb wave propagation in PSC beam is affected by changing in the PSF level. Results from acoustic-elastic measurement on prestressed beam are presented, showing the feasibility of the lamb wave for PSF evaluation in PSC bridges.