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.

The impact of flooding on residential property values in England

Severe flooding throughout England in Autumn 1998 and 2000, has seen an increase in the extent of flood liable residential areas throughout England, as well as an increase in the actual levels of flood damage in all previously recognised flood prone residential areas. The increasing cost of rectifying the damage caused to residential properties from flooding has been of some concern to the residential property valuation profession and sales and leasing agency practices. However, the increasing trend in the frequency of flooding in England, combined with an increase in severity of flooding is now causing some degree of concern in the residential insurance and housing finance sectors. In order to determine and quantify the impact of flooding and flood damage on the residential property market in England, a survey of Chartered Surveyors and Chartered Real Estate Valuers has been carried out across the main flood affected counties of England. This survey will provide similar details to the research completed by Eves (1999, 2001) and Fibbens (1993) in relation to residential property flooding in Australia. This survey provides comprehensive responses in relation to the degree of flood affectation across counties, the effect of flooding on residential property values, the impact of flooding on building insurance premiums and possible difficulties in obtaining finance to purchase residential property in recognised flood areas.

Contemporary behavioural influences in an organisational setting and implications for intervention development

Professional drivers and safety Within the industrialised world, work-related crashes are the most common cause of work-related death, injury and reduced productivity (Charbotel et al., 2001; Toscano and Windau, 1994). Likewise in Australia, road crashes are the most common cause of work-related fatalities, injuries and absence from work (Haworth et al., 2000), with the average time lost being greater than any other workplace claim (Stewart-Bogle, 1999). There are obvious costs related to work crashes such as vehicle and property repair costs. There are also many hidden expenses including third party costs, workers compensation, medical costs, rehabilitation, customer-related costs, increased insurance premiums, administrative costs, legal fees and loss of productivity (Collingwood, 1997; Haworth et al, 2000).

The extent of the insured’s duty of disclosure : a comparative analysis of the disclosure obligations of insured in Australia, Singapore and China

Pre-contractual material disclosure and representation from an insurance policy proposer is the most important element for insurers to make a decision on whether a proposer is insurable and what are the terms and conditions if the proposal by the proposer is able to be insured. The issue this thesis researches and investigates focus on the issues related to the pre-contractual non-disclosures and misrepresentations of an insured under the principle of utmost good faith, by operation of laws, can achieve with different results in different jurisdiction. A similar disputed claim involving material non-disclosed personal information or misrepresentation at the pre-contractual stage from an insured with respect to both general and life insurance policies settled by an insurer in Australia could be that the policy is set aside ab initio by the insurers in Singapore or China. The jurisdictions this thesis examines are • Australia; • Singapore; and • China including Hong Kong.

Examining gender differences in drivers' thoughts and feelings about different outcomes of speeding: Implications for future anti-speeding messages

Speeding remains a pervasive road safety problem, increasing both crash frequency and severity. Advertising countermeasures which aim to change individuals’ attitudes and behaviours are a key component in the array of countermeasures aimed at reducing this risky behaviour. Enhancing individuals’ perceptions of the personal relevance of such messages is important for increasing persuasiveness. This study examined what males and females reported as the most concerning aspects associated with (i) receiving a speeding fine, (ii) losing one’s license, and (iii) being involved in a crash. For each of these outcomes, a range of specific and appropriate aspects were assessed. For instance, in relation to receiving a fine, individuals reported the extent to which they would, for example, feel concerned about losing demerit points and paying more in insurance premiums. An online survey of 751 drivers (579 males; 16-79 years) was administered. When controlling for age, overall significant gender differences were found in relation to two of the three outcomes; receiving a fine and being in a crash. Follow-up tests of univariate effects revealed that females consistently reported being significantly more concerned than males on all aspects. Thus, for being fined, females were significantly more concerned with, for example, being caught and receiving a ticket in the mail; while, for being in a crash, specific aspects included, for example, injuring/killing oneself and seeing oneself as not a good/safe driver. The findings are discussed in terms of their implications for developing well-targeted messages aimed at discouraging drivers from speeding.

Links between unlicensed and unregistered driving: Literature review. Report to Queensland Department of Transport and Main Roads

Vehicle registration represents an important component of the management of the road transport system in Queensland, with most vehicles required to be registered before they can be driven or parked on a public road (Department of Transport and Main Roads, 2010b). In addition to the collection of taxes for road construction and maintenance, the current registration system also: • Sets the safety standards required for vehicles to be allowed on public roads; • Allows driver behaviour to be managed by identifying vehicles, and the responsible owners of vehicles, for enforcement purposes; and • Facilitates the collection of insurance premiums for the Queensland Compulsory Third Party (CTP) insurance scheme.

Insurance : The Laws of Australia

Insurance - the laws of Australia provides insurance practitioners, insurance companies and students with a principles-based, practical guide to insurance law in Australia. It provides comprehensive coverage and analysis of common law principles relating to, and the statutory regulation of, insurance contracts and the operation of an insurance business. The common law and statutory provisions are dealt within the context of marine, life and general insurance.

Volunteers 'piggy-backing' on their private insurance : an uncertain protection against liability

Volunteering is a very important part of life in Australia with an estimated 36% of the adult population volunteering in 2010. Voluntary work generates economic benefits, addresses community needs and develops the social networks that form the backbone of civil society. Without volunteers, many essential services would either cease to exist or become too expensive for many people to afford. These volunteers, who by definition are not in receipt of any remuneration for their work and services, are exposed to personal injury and to legal liability in the discharge of their functions. It is therefore appropriate that statutory protection is extended to volunteers and that volunteer organisations procure public liability and personal accident cover where possible. However, given the patchwork quilt of circumstances where statutory or institutional cover is available to volunteers and the existence of many and diverse exclusions, it is important to have regard also to what scope a volunteer may have to avail themselves of protection against liability for volunteering activity by relying upon their own personal insurance cover. This article considers the extent of private insurance cover and its availability to volunteers under home and contents insurance and under comprehensive motor vehicle insurance. The most common policies in the Australian market are examined and the uncertain nature of protection against liability afforded by these policies is discussed. This uncertainty could be reduced should the Federal Government through amendments to the Insurance Contracts Regulations standardise the circumstances and extent to which liability protection was afforded to an insured holding home and contents insurance and comprehensive motor vehicle insurance cover.

A sunburnt country – storms, surges and sea levels : of insurance and flooding rains

Increasing population pressures and life-style choices are resulting in more people living in areas that are at risk of inundation from rising sea levels and flooding. However, following natural disaster events, such as the 2011 Queensland floods, many Australians discovered they were uninsured. Either their insurance policies did not cover flood; or multiple (and confusing) water-related definitions led them to believe they had cover when they did not. Several theories are analysed to try to explain what is a world-wide underinsurance problem but these do not provide an answer to the problem. This research focuses on uncovering the reasons consumers fail to adequately insure for flood and other water-related events. Recent Australian legislative attempts to overcome insureds’ confusion of water related definitions are examined for this purpose. The authors conclude that Australian and other) legislators should set a maximum premium for a minimum amount of flood and sea related cover; and restrict the building and style of homes in flood prone areas.

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.

Spontaneous and episodic volunteers: The legislative, insurance and risk management framework

Baby Boomers are a generation of life long association joiners, but following generations prefer spontaneous and episodic volunteering. This trend is apparent not only during natural disasters, but in most other spheres of volunteering. Legal liability for such volunteers is a growing concern, which unresolved, may dampen civic participation. We critically examine the current treatment of these liabilities through legislation, insurance and risk management.

The Scored Patient-Generated Subjective Global Assessment (PG-SGA) and its Association with Quality of Life in Ambulatory Patients Receiving Radiotherapy

OBJECTIVE: To evaluate the scored Patient-generated Subjective Global Assessment (PG-SGA) tool as an outcome measure in clinical nutrition practice and determine its association with quality of life (QoL). DESIGN: A prospective 4 week study assessing the nutritional status and QoL of ambulatory patients receiving radiation therapy to the head, neck, rectal or abdominal area. SETTING: Australian radiation oncology facilities. SUBJECTS: Sixty cancer patients aged 24-85 y. INTERVENTION: Scored PG-SGA questionnaire, subjective global assessment (SGA), QoL (EORTC QLQ-C30 version 3). RESULTS: According to SGA, 65.0% (39) of subjects were well-nourished, 28.3% (17) moderately or suspected of being malnourished and 6.7% (4) severely malnourished. PG-SGA score and global QoL were correlated (r=-0.66, P<0.001) at baseline. There was a decrease in nutritional status according to PG-SGA score (P<0.001) and SGA (P<0.001); and a decrease in global QoL (P<0.001) after 4 weeks of radiotherapy. There was a linear trend for change in PG-SGA score (P<0.001) and change in global QoL (P=0.003) between those patients who improved (5%) maintained (56.7%) or deteriorated (33.3%) in nutritional status according to SGA. There was a correlation between change in PG-SGA score and change in QoL after 4 weeks of radiotherapy (r=-0.55, P<0.001). Regression analysis determined that 26% of the variation of change in QoL was explained by change in PG-SGA (P=0.001). CONCLUSION: The scored PG-SGA is a nutrition assessment tool that identifies malnutrition in ambulatory oncology patients receiving radiotherapy and can be used to predict the magnitude of change in QoL.