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.

Simplified numerical models of LiteSteel Beam floor joists with Web openings for the prediction of section moment capacities

This paper is aimed at investigating the effect of web openings on the plastic bending behaviour and section moment capacity of a new cold-formed steel beam known as LiteSteel beam (LSB) using numerical modelling. Different LSB sections with varying circular hole diameter and spacing were considered. A simplified but appropriate numerical modelling technique was developed for the modelling of monosymmetric sections such as LSBs subject to bending, and was used to simulate a series of section moment capacity tests of LSB flexural members with web openings. The buckling and ultimate strength behaviour was investigated in detail and the modeling technique was further improved through a comparison of numerical and experimental results. This paper describes the simplified finite element modeling technique used in this study that includes all the significant behavioural effects affecting the plastic bending behaviour and section moment capacity of LSB sections with web holes. Numerical and test results and associated findings are also presented.

Section 46(1) and 46(1AA) of the TPA : the struggle of the small against the large

The purpose of this article is to highlight the conflict in the policy objectives of subs 46(1) and subs 46(1AA) of the Trade Practices Act 1974 (Cth) (TPA). The policy objective of subs 46(1) is to promote competition and efficient markets for the benefit of consumers (consumer welfare standard). It does not prohibit corporations with substantial market power using cost savings arising from efficiencies such economies of scale or scope, to undercut small business competitors The policy objective of 46(1AA), on the other hand, is to protect small business operators from price discounting by their larger competitors.. Unlike subs 46(1), it does not contain a ‘taking advantage’ element. It is argued that subs 46(1AA) may harm consumer welfare by having a chilling effect on price competition if this would harm small business competitors.

Disclosure under the prescribed insurance contracts regime : Section 35 of the Insurance Contracts Act 1984 and consumer protection revisited

Section 35 of the Insurance Contracts Act 1984 requires insurers offering insurance policies in six prescribed areas "to clearly inform" prospective insureds of any departure their policies may constitute from the standard covers established by the Act and its accompanying Regulations. This prescribed insurance contracts regime was designed to remedy comprehension problems generated by the length and complexity of insurance documents and to alleviate misunderstanding over the terms and conditions of individual policies. This article examines the rationale underpinning s 35 and the prescribed insurance contracts regime and looks at the operation of the legislation with particular reference to home contents insurance in Australia. It is argued that the means whereby disclosure of derogation from standard cover may be effected largely negates the thrust of the prescribed insurance contract reform. Recommendations to address these operational deficiencies are made.

Effect of section geometry on the lateral distortional buckling of LiteSteel beams

The LiteSteel Beam (LSB) is a new hollow flange section developed by OneSteel Australian Tube Mills using their patented dual electric resistance welding and automated continuous roll-forming technologies. It has a unique geometry consisting of torsionally rigid rectangular hollow flanges and a relatively slender web. It has found increasing popularity in residential, industrial and commercial buildings as flexural members. The LSB is considerably lighter than traditional hot-rolled steel beams and provides both structural and construction efficiencies. However, the LSB flexural members are subjected to a relatively new lateral distortional buckling mode, which reduces their member moment capacities. Unlike the commonly observed lateral torsional buckling of steel beams, the lateral distortional buckling of LSBs is characterised by simultaneous lateral defection, twist and cross sectional change due to web distortion. The current design rules in AS/NZS 4600 (SA, 2005) for flexural members subject to lateral distortional buckling were found to be conservative by about 8% in the inelastic buckling region. Therefore, a new design rule was developed for LSBs subject to lateral distortional buckling based on finite element analyses of LSBs. The effect of section geometry was then considered and several geometrical parameters were used to develop an advanced set of design rules. This paper presents the details of the finite element analyses and the design curve development for hollow flange sections subject to lateral distortional buckling.

Detailed landscape plan for the North section of the Bailang River north of Jiqing Highway, Weifang

International practice-led design research in landscape architecture has identified wetland sites as highly significant and potentially fragile environments in many countries. China has considerable wetland acreage that has been drained and transformed into farmland to address local poverty of farmers. An important gap in knowledge exists as to how to design Chinese public open spaces to reduce water contamination, flood severity and loss of farmland for local villagers as urban development expands. This project responded to the opportunity of introducing a new type of wetland design to Stage 3 of the Bailang River Redevelopment, Weifang City, Shandong Province. The work proposed a range of wetland design innovations for Chinese wetland environments to encourage on-site solutions to contamination and flooding problems.

Fast rates for estimation error and oracle inequalities for model section

We consider complexity penalization methods for model selection. These methods aim to choose a model to optimally trade off estimation and approximation errors by minimizing the sum of an empirical risk term and a complexity penalty. It is well known that if we use a bound on the maximal deviation between empirical and true risks as a complexity penalty, then the risk of our choice is no more than the approximation error plus twice the complexity penalty. There are many cases, however, where complexity penalties like this give loose upper bounds on the estimation error. In particular, if we choose a function from a suitably simple convex function class with a strictly convex loss function, then the estimation error (the difference between the risk of the empirical risk minimizer and the minimal risk in the class) approaches zero at a faster rate than the maximal deviation between empirical and true risks. In this paper, we address the question of whether it is possible to design a complexity penalized model selection method for these situations. We show that, provided the sequence of models is ordered by inclusion, in these cases we can use tight upper bounds on estimation error as a complexity penalty. Surprisingly, this is the case even in situations when the difference between the empirical risk and true risk (and indeed the error of any estimate of the approximation error) decreases much more slowly than the complexity penalty. We give an oracle inequality showing that the resulting model selection method chooses a function with risk no more than the approximation error plus a constant times the complexity penalty.