Disclosure and concealment in consumer insurance contracts

This book provides an in-depth examination of the theoretical,legal, social and economic foundations to disclosure and concealment of information in relation to the formation of consumer insurance contracts. A comparative treatment of this issue is undertaken with particular attention given to the judicial and legislative approaches adopted in the United Kingdom, the United States of America, Australia and New Zealand.

The regulation of insurance intermediaries in the Australian financial services market

The insurance industry discharges a critical role in the Australian economy and is a significant part of the Australian financial services market. The industry relies upon intermediaries, the principal types being brokers and agents, to promote, arrange and distribute their products and services in the market. The pivotal role that they play in this context and sensitivities associated with the consumer oriented products, such as house and contents insurance, has ensured close regulatory attention. Of particular importance was the passage of the Insurance (Agents and Brokers) Act 1984 (Cth), a comprehensive attempt to address the responsibilities of intermediaries as well as particular problem areas associated with the handling of money. However, with the introduction of financial services and market reform early in the new millennium this insurance intermediary specific regulatory approach was abandoned in favour of a market-wide strategy; that is, market reform was based upon across-the-board licensing, disclosure, conduct and fairness standards, and all financial products and services are now regulated at a generic level under Ch 7 of the Corporations Act 2001 (Cth). This article briefly explores the categories of insurance intermediaries and the relevant distinctions between them but focuses mainly upon the regulatory context in which they operate. This context transcends a strictly legal framework as the regulatory body, the Australian Securities and Investments Commission (ASIC), has sought to inform and guide the market through Policy Statements and Regulatory Guides. The usefulness of these guides as an adjunct to the legislation in explaining the scope and operation of regulatory framework is examined. In addition, the article looks at the self-regulatory and dispute resolution practices in this area and their impact. In conclusion an assessment of this across-the-board regulatory regime is advanced.

Vulnerability, insurance and policy: The learner driver's standard of care

In Cook v Cook the Australian High Court held that the standard of reasonable care owed by a learner driver to an instructor, conscious of the driver’s lack of experience, was lower than that owed to other passengers and road users. Recently, in Imbree v McNeilly, the High Court declined to follow this principle, concluding that the driver’s status or relationship with the claimant should no longer influence or alter the standard of care owed. The decision therefore provides an opportunity to re-examine the rationale and policy behind current jurisprudence governing the standard of care owed by learner drivers. In doing so, this article considers the principles relevant to determining the standard and Imbree’s implications for other areas of tort law and claimant v defendant relationships. It argues that Imbree was influenced by changing judicial perceptions concerning the vulnerability of driving instructors and the relevance of insurance to tortious liability.

Cranes, claims and a statutory right of user

In larger developments there is potential for construction cranes to encroach into the airspace of neighbouring properties. To resolve issues of this nature, a statutory right of user may be sought under s 180 of the Property Law Act 1974 (Qld). Section 180 allows the court to impose a statutory right of user on servient land where it is reasonably necessary in the interests of effective use in any reasonable manner of the dominant land. Such an order will not be made unless the court is satisfied that it is consistent with public interest, the owner of the servient land can be adequately recompensed for any loss or disadvantage which may be suffered from the imposition and the owner of the servient land has refused unreasonably to agree to accept the imposition of that obligation. In applying the statutory provision, a key practical concern for legal advisers will be the basis for assessment of compensation. A recent decision of the Queensland Supreme Court (Douglas J) provides guidance concerning matters relevant to this assessment. The decision is Lang Parade Pty Ltd v Peluso [2005] QSC 112.

Enhancing business continuity management capacities in the insurance industry : a Southeast Asian perspective

As a resilience enhancing practice, business continuity management (BCM) can play an important role in aiding preparation of the insurance industry for coping with the losses incurred by major discontinuity incidents: regardless of cause. Acknowledging the increasing frequency of unpredictable man-made disasters and natural catastrophes, the insurance industry would benefit from examining and implementing, where suitable, key elements of BCM. Such strategic decisions would assist insurers and re-insurers collectively to enhance mutual capability to respond to, and recover from, the impact of significant losses. This paper presents a comparison of opinions about BCM practitioners in both retail and re-insurance companies on the importance of generic continuity practices with actual levels of BCM practice across the two industry groups in Southeast Asia. It suggests means by which multi-lateral cooperation across Asian economies and between retail and re-insurance market segments might enhance the viability of the insurance industry in the face of increased stress from major natural and socio-technical hazards.

Floods, earthquakes and insurance coverage : issues, problems and solutions

The recent floods in Queensland and elsewhere in Australia as well as the recent earthquakes in New Zealand have again given rise to very significant uninsured losses. This article looks at the issue of cover protection against catastrophes such as floods and earthquakes affecting home buildings and contents insurance and the standard cover provisions of the Insurance Contracts Act 1984 (Cth). It points also to the possibility of a national scheme to cover natural disasters including floods.

Loss of chance in medical negligence claims now a lost cause?

The question whether the loss of chance of a better medical outcome in cases of medical negligence should be recognised as actionable damage is ‘a question which has divided courts and commentators throughout the common law world.’ In April 2010, the High Court handed down its anticipated decision in the case of Tabet (by her Tutor Sheiban) v Gett (2010) 240 CLR 537. The issue considered by the court was whether the appellant could claim in negligence for the loss of a chance of a better medical outcome. This issue had not been considered by the High Court previously, the most relevant cases being Rufo v Hosking (2004) 61 NSWLR 678 and Gavalas v Singh (2001) 3 VLR 404. Claiming for a loss of chance in a personal injury action raises questions as to recognised damage and causation, and the members of the High Court considered both of these.

Insurance and the law of negligence : an influential or irrelevant persuader?

This article examines, from both within and outside the context of compulsory third party motor vehicle insurance, the different academic and judicial perspectives regarding the relevance of insurance to the imposition of negligence liability via the formulation of legal principle. In particular, the utility of insurance in setting the standard of care held owing by a learner driver to an instructor in Imbree v McNeilly is analysed and the implications of this High Court decision, in light of current jurisprudential argument and for other principles of negligence liability, namely claimant vulnerability, are considered. It concludes that ultimately one’s stance as to the relevance, or otherwise, of insurance to the development of the common law of negligence will be predominately influenced by normative views of torts’ function as an instrument of corrective or distributive justice.

Fuelling traffic : abolitionist claims of a causal nexus between legalised prostitution and trafficking

Over the last decade, researchers and legislators have struggled to get an accurate picture of the scale and nature of the problem of human trafficking. In the absence of reliable data, some anti-prostitution activists have asserted that a causal relationship exists between legalised prostitution and human trafficking. They claim that systems of legalised or decriminalised prostitution lead to increases in trafficking into the sex industry. This paper critically analyses attempts to substantiate this claim during the development of anti-trafficking policy in Australia and the United States. These attempts are explored within the context of persistent challenges in measuring the scale and nature of human trafficking. The efforts of abolitionist campaigners to use statistical evidence and logical argumentation are analysed, with a specific focus on the characterisation of demand for sexual services and systems of legalised prostitution as ‘pull’ factors fuelling an increase in sex trafficking. The extent to which policymakers sought to introduce evidence-based policy is also explored.

Context-aware methods for process modeling

Recent studies have started to explore context-awareness as a driver in the design of adaptable business processes. The emerging challenge of identifying and considering contextual drivers in the environment of a business process are well understood, however, typical methods used in business process modeling do not yet consider this additional contextual information in their process designs. In this chapter, we describe our research towards innovative and advanced process modeling methods that include mechanisms to incorporate relevant contextual drivers and their impacts on business processes in process design models. We report on our ongoing work with an Australian insurance provider and describe the design science we employed to develop these innovative and useful artifacts as part of a context-aware method framework. We discuss the utility of these artifacts in an application in the claims handling process at the case organization.

Incentivising private health insurance through the income tax regime : Capitalising on behavioural models

The Australian income tax regime is generally regarded as a mechanism by which the Federal Government raises revenue, with much of the revenue raised used to support public spending programs. A prime example of this type of spending program is health care. However, a government may also decide that the private sector should provide a greater share of the nation's health care. To achieve such a policy it can bring about change through positive regulation, or it can use the taxation regime, via tax expenditures, not to raise revenue but to steer or influence individuals in its desired direction. When used for this purpose, tax expenditures steer taxpayers towards or away from certain behaviour by either imposing costs on, or providing benefits to them. Within the context of the health sector, the Australian Federal Government deploys social steering via the tax system, with the Medicare Levy Surcharge and the 30 percent Private Health Insurance Rebate intended to steer taxpayer behaviour towards the Government’s policy goal of increasing the amount of health provision through the private sector. These steering mechanisms are complemented by the ‘Lifetime Health Cover Initiative’. This article, through the lens of behavioural economics, considers the ways in which these assorted mechanisms might have been expected to operate and whether they encourage individuals to purchase private health insurance.

Melbourne and Brisbane: The Claims of Suburbs

This chapter critiques the imagined geography of creative cities and the creative industries, which presumes that inner cities are densely clustered hubs of urban culture and creativity while suburbs are dull, homogeneous dormitories from which creative people must escape in order to realize their potential. Drawing upon a study on creative industries workers in Melbourne and Brisbane, the authors argue that these workers are as likely to be located in the suburbs as in the inner city, and that they clearly identify advantages to being in outer suburban locations. Their findings provide a corrective to dominant urban cultural policy narratives that stress cultural amenity in the inner cities.