Accountability 30 years on: Insurance Contracts Act Reform

The Insurance Contracts Act 1984 (Cth) since inception has effected major reform to the law in this field. One of Australia’s most frequently cited pieces of legislation, it has had a major impact upon the law and practice of insurance. Given the importance of insurance to domestic and commercial activity and its pivotal position as a mechanism to manage exposure to risk, it is not surprising that this legislation has been the subject of extensive analysis in the courts and in legal literature. Furthermore the Act has, arising out of a 2009 review, been significantly amended by the Insurance Contracts Amendment Act 2013 (Cth). The principal amendments introduced are: two-fold: the Insurance Contracts Act 1984 (Cth) has been amended so that a failure to comply with the duty of good faith is now a breach of the Act; and disclosure and misrepresentation provisions under the Insurance Contracts Act 1984 (Cth) are amended and clarified.

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.

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 National Road Safety Partnership Program providing a pathway for any business/organisation to create a positive road safety culture

The National Road Safety Partnership Program (NRSPP) is an industry-led collaborative network which aims to support Australian businesses in developing a positive road safety culture. It aims to help businesses to protect their employees and the public, not only during work hours, but also when their staff are ‘off-duty’. How do we engage and help an organisation minimise work-related vehicle crashes and their consequences both internally, and within the broader community? The first step is helping an organisation to understand the true cost of its road incidents. Larger organisations often wear the costs without knowing the true impact to their bottom line. All they perceive is the change in insurance or vehicle repairs. Understanding the true cost should help mobilise a business’s leadership to do more. The next step is ensuring the business undertakes an informed, structured, evidence-based pathway which will guide them around the costly pitfalls. A pathway based around the safe system approach with buy-in at the top which brings the workforce along. The final step, benchmarking, allows the organisation to measure and track its change. This symposium will explore the pathway steps for organisations using NRSPP resources to become engaged in road safety. The 'Total Cost of Risk' calculator has been developed by Zurich, tested in Europe by Nestle and modified by NRSPP for Australia. This provides the first crucial step. The next step is a structured approach through the Workplace Road Safety Guide using experts and industry to discuss the preferred safe system approach which can then link into the national Benchmarking Project. The outputs from the symposium can help frame a pathway for organisations to follow through the NRSPP website.

Bayesian and Decision Tree Approaches for Pattern Recognition Including Feature Measurement Costs

The minimum cost classifier when general cost functionsare associated with the tasks of feature measurement and classification is formulated as a decision graph which does not reject class labels at intermediate stages. Noting its complexities, a heuristic procedure to simplify this scheme to a binary decision tree is presented. The optimizationof the binary tree in this context is carried out using ynamicprogramming. This technique is applied to the voiced-unvoiced-silence classification in speech processing.

The impact of home loan key facts sheets on borrowers' comparisons of loan costs

This thesis evaluates the effectiveness of the prescribed design and distribution requirements of the Australian Government's home loan key facts sheets (KFS) aimed at helping borrowers compare loan costs. The findings show that despite effectively improving borrower decision-making, few borrowers were aware of their existence and function. It was also demonstrated that KFS have had limited market impact over the four year window since introduction, likely due to the requirement that KFS provision is not required unless formally requested by a borrower. Recommendations include transferring the burden of disclosure to lenders in the first instance to address this information gap.

The Eligibility Definition Used in the Social Security Administration’s Disability Programs Needs to be Changed

In its October 2003 report on the definition of disability used by the Social Security Administration’s (SSA’s) disability programs [i.e., Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) for people with disabilities], the Social Security Advisory Board raises the issue of whether this definition is at odds with the concept of disability embodied in the Americans with Disabilities Act (ADA) and, more importantly, with the aspirations of people with disabilities to be full participants in mainstream social activities and lead fulfilling, productive lives. The Board declares that “the Nation must face up to the contradictions created by the existing definition of disability.” I wholeheartedly agree. Further, I have concluded that we have to make fundamental, conceptual changes to both how we define eligibility for economic security benefits, and how we provide those benefits, if we are ever to fulfill the promise of the ADA. To convince you of that proposition, I will begin by relating a number of facts that paint a very bleak picture – a picture of deterioration in the economic security of the population that the disability programs are intended to serve; a picture of programs that purport to provide economic security, but are themselves financially insecure and subject to cycles of expansion and cuts that undermine their purpose; a picture of programs that are facing their biggest expenditure crisis ever; and a picture of an eligibility determination process that is inefficient and inequitable -- one that rations benefits by imposing high application costs on applicants in an arbitrary fashion. I will then argue that the fundamental reason for this bleak picture is the conceptual definition of eligibility that these programs use – one rooted in a disability paradigm that social scientists, people with disabilities, and, to a substantial extent, the public have rejected as being flawed, most emphatically through the passage of the ADA. Current law requires eligibility rules to be based on the premise that disability is medically determinable. That’s wrong because, as the ADA recognizes, a person’s environment matters. I will further argue that programs relying on this eligibility definition must inevitably: reward people if they do not try to help themselves, but not if they do; push the people they serve out of society’s mainstream, fostering a culture of isolation and dependency; relegate many to a lifetime of poverty; and undermine their promise of economic security because of the periodic “reforms” that are necessary to maintain taxpayer support. I conclude by pointing out that to change the conceptual definition for program eligibility, we also must change our whole approach to providing for the economic security of people with disabilities. We need to replace our current “caretaker” approach with one that emphasizes helping people with disabilities help themselves. I will briefly describe features that such a program might require, and point out the most significant challenges we would face in making the transition.

Costs assessment not an each-way bet: Radich v Kenway [2014] QDC 60

In Radich v Kenway [2014] QDC 60 McGinness DCJ considered issues relating to the assessment of costs under the Legal Profession Act 2007 (Qld). This recent costs assessment case from the District Court clearly illustrates the interplay between the relevant elements of the Legal Profession Act 2007 and Uniform Civil Procedure Rules 1999.

Keeping clear on costs: Geatches v Anglo Coal (Moranbah North Management Pty Ltd) [2014] QSC 106

In Geatches v Anglo Coal (Moranbah North Management Pty Ltd [2014] QSC 106, a dispute arose in the context of an assessment of costs as to the meaning to be attributed to particular terms of settlement and discharge signed by the parties. The court was required to consider the implications of those documents, and of a subsequent consent order intended to reflect the agreed settlement. Recovery of costs - terms of settlement and discharge exclude recovery of costs against one party and require other party to pay costs of claim against it - whether only subsequent consent order should be construed - implications where costs were common and mixed costs - whether costs should be apportioned

On the construction of costs: McDermott v Robinson Helicopter Company (No.2) [2014] QSC 213

The decision in McDermott v Robinson Helicopter Company (No 2) [2014] QSC 213 involves an extensive examination of authorities on the general principle relating to the awarding of costs to a successful party. The court concluded that there was a predilection in favour of distributing costs according to the outcome or 'event' of particular issues in the action.

Evidence in view: Matton Developments Pty Ltd v CGU Insurance Limited [2014] QSC 256

Rule 478 of the Uniform Civil Procedure Rules 1999 (Qld)(view by court) is silent as to the manner in which a court might be expected to exercise the discretion to order an inspection or demonstration under the rule and also as to the use which may be made of any inspection or demonstration ordered. The decision in Matton Developments Pty Ltd v CGU Insurance Limited [2014] QSC 256 provides guidance on both matters. This case provides some guidance on the circumstances in which a court may exercise its discretion to order a view or demonstration

The Benefits Planner: Improved Work Incentives in Social Security Disability Insurance Program - Changes Will Make Work More Attractive to SSDI Recipients

This newsletter will provide valuable information on how work for persons with disabilities effects government benefits, with an emphasis on the Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) work incentives. Each newsletter will contribute to an ongoing dialogue on topics related to benefits and work.

The Municipal Budgetary Response to Changing Labor Costs: The Case of San Francisco

"This paper analyzes how expenditures of the city of San Francisco were altered in response to changes in municipal labor costs over the period 1945 through 1976. A hybrid of the "demands" and the "organizational" models of budgeting is used to measure the budgetary response to changes in the relative prices of labor inputs. Descriptive and econometric evidence reveals significant adjustments both among and within departments in reaction to changes in relative labor costs. The empirical evidence demonstrates that the city's budgetary process is guided by simple allocative rules modified by price-responsive adjustments."

Obvious error in approach to default costs assessment

The decision of Henry J in Ginn & Anor v Ginn; ex parte Absolute Law Lawyers & Attorneys [2015] QSC 49 provides clarification of the approach to be taken on a default costs assessment under r708 of the Uniform Civil Procedure Rules 1999

Revised benefits and costs of eradicating the red imported fire ant

The paper revisits estimates of cost/benefit for eradication in Australia provided in 2001 which were based largely on information about a US ecosystem. The study had two major components; spread modelling using a cellular automation model provided by Joe Scanlan and an impact analysis undertaken by the remaining authors. The revised figures provided in this study increased the damage estimate from $2.8 billion to $45 billion and the benefit-cost ratio of eradication efforts improved from 25:1 to 390:1.