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.

Predicting Australian adults' sun-safe behaviour : examining the role of personal and social norms

Objectives To address the scarcity of comprehensive, theory-based research in the Australian context, this study, using a theory of planned behaviour (TPB) framework, investigated the role of personal and social norms to identify the key predictors of adult Australians' sun-safe intentions and behaviour. Design The study used a prospective design with two waves of data collection, 1 week apart. Methods Participants were 816 adults (48.2% men) aged between 18 and 88 years recruited from urban, regional, and rural areas of Australia. At baseline, participants completed a questionnaire assessing the standard TPB predictors (attitude, subjective norm, and perceived behavioural control [PBC]), past behaviour, behavioural intention, and additional measures of group norm for the referent groups of friends and family, image norm, personal norm, personal choice/responsibility, and Australian identity. Seventy-one per cent of the participants (n = 577) reported on their sun-safe behaviour in the subsequent week. Results Via path modelling, past behaviour, attitude, group norm (friends), personal norm, and personal choice/responsibility emerged as independent predictors of intentions which, in turn, predicted sun-safe behaviour prospectively. Past behaviour, but not PBC, had direct effects on sun-safe behaviour. The model explained 61.6% and 43.9% of the variance in intention and behaviour, respectively. Conclusions This study provides support for the use of a comprehensive theoretical decision-making model to explain Australian adults' sun-safe intentions and behaviours and identifies viable targets for health-promoting messages in this high-risk context.

The influence of injury cause, contact-sport participation, and personal knowledge on expectation of outcome from mild traumatic brain injury

Objective: This study investigated the influence of injury cause, contact-sport participation, and prior knowledge of mild traumatic brain injury (mTBI) on injury beliefs and chronic symptom expectations of mTBI. Method: A total of 185 non-contact-sport players (non-CSPs) and 59 contact-sport players (CSPs) with no history of mTBI were randomly allocated to one of two conditions in which they read either a vignette depicting a sport-related mTBI (mTBIsport) or a motor-vehicle-accident-related mTBI (mTBIMVA). The vignettes were otherwise standardized to convey the same injury parameters (e.g., duration of loss of consciousness). After reading a vignette, participants reported their injury beliefs (i.e., perceptions of injury undesirability, chronicity, and consequences) and their expectations of chronic postconcussion syndrome (PCS) and posttraumatic stress disorder (PTSD) symptoms. Results: Non-CSPs held significantly more negative beliefs and expected greater PTSD symptomatology and greater PCS affective symptomatology from an mTBIMVA vignette thann mTBIsport vignette, but this difference was not found for CSPs. Unlike CSPs, non-CSPs who personally knew someone who had sustained an mTBI expected significantly less PCS symptomatology than those who did not. Despite these different results for non-CSPs and CSPs, overall, contact-sport participation did not significantly affect injury beliefs and symptom expectations from an mTBIsport. Conclusions: Expectations of persistent problems after an mTBI are influenced by factors such as injury cause even when injury parameters are held constant. Personal knowledge of mTBI, but not contact sport participation, may account for some variability in mTBI beliefs and expectations. These factors require consideration when assessing mTBI outcome.

Chondrocyte redifferentiation and construct mechanical property development in single-component photocrosslinkable hydrogels

Hydrogels are promising materials for cartilage repair, but the properties required for optimal functional outcomes are not yet known. In this study, we functionalized four materials that are commonly used in cartilage tissue engineering and evaluated them using in vitro cultures. Gelatin, hyaluronic acid, polyethylene glycol, and alginate were functionalized with methacrylic anhydride to make them photocrosslinkable. We found that the responses of encapsulated human chondrocytes were highly dependent on hydrogel type. Gelatin hydrogels supported cell proliferation and the deposition of a glycosaminoglycan rich matrix with significant mechanical functionality. However, cells had a dedifferentiated phenotype, with high expression of collagen type I. Chondrocytes showed the best redifferentiation in hyaluronic acid hydrogels, but the newly formed matrix was highly localized to the pericellular regions, and these gels degraded rapidly. Polyethylene glycol hydrogels, as a bioinert control, did not promote any strong responses. Alginate hydrogels did not support the deposition of new matrix, and the stiffness decreased during culture. The markedly different response of chondrocytes to these four photocrosslinkable hydrogels demonstrates the importance of material properties for chondrogenesis and extracellular matrix production, which are critical for effective cartilage repair.

Individuals, Innovation, and the Internet : Why Access is Essential

As each day passes, and as new and better devices and services are developed, more and more government and private services are being moved to an online format. This movement makes access to the internet an essential for 21st Century life. The internet has become so integrated in our lives that many of us cannot imagine how we could operate without it. This omnipresent ‘being’ affects all forms of ‘normal’ social and economic activity and does so in ways that we do not realize. Those with access are able to engage with government, business, and family and friends more easily, which can lead to an improved standard of living. For the disadvantaged, however – those with the desire but without the capacity – a lack of access can be socially isolating. "Between the idea And the reality Between the motion And the act Falls the Shadow – T. S. Elliott. “The Hollow Men” Engagement in the internet economy requires both physical access and the individual to have the necessary finances and skills to make and sustain their use. If governments and the international community want a fully functioning internet economy this requires that all individuals must be operating in it. That not all individuals do so means, very simply, that the internet economy is not fully functioning. The text contextualizes for policy makers and legislatures why it is essential to ensure that individuals have appropriate access to the internet and what can be done to achieve it. The interrelationship/overlap between why access is essential, how it can be achieved and the central role of the individual to the internet economy is explored and translated into the concept of connectedness. From this, solutions for ensuring connectedness for all individuals are developed. It is Dr Cradduck’s hope that in the not too distant future readers will puzzle over why texts such as this needed to be written.

Seeing it differently: physical education, teacher education and the possibilities of personal construct theory

The celebrated work of Lortie (1975) alerted teacher educators to the extended period of 'apprenticeship' that student teachers have been through before they arrive at teacher education programmes. The subjective implicit theories (Marland, 1992) developed by prospective teachers are shaped by their lifeworld experiences at school and in the case of physical education teachers, their experiences in sport. The biography of physical education teacher education (PETE) students tends to be characterised by ecto-mesomorphic individuals who have been socialised by the rigours of highly competitive sport (Gore, 1990; Macdonald, 1992; Rossi, 1996). We can add to this, the requirements of teacher preparation in physical education which for the most part are dominated by the traditions and rhetoric of the 'natural' bio-physical sciences; largely a legacy of Henry's (1964) work on physical education as an academic discipline, as well as that of Abernathy and Waltz the same year (Abernathy & Waltz, 1964). In the United Kingdom, Curl (1973) further advanced the argument in an attempt to justify human movement as an independent field of study with its own corpus of knowledge. It is little wonder then, that the dominant pedagogical discourse in physical education is, as Tinning (1991) discusses, one of performance pedagogy (see also Hendry, 1986 for an earlier discussion). The knowledge required to support such a discourse could be described as 'official' (Apple, 1993) and it assumes such status by virtue of the power appropriated by and bestowed upon the scientific community in PETE (Macdonald & Tinning, 1995; Sparkes, 1989, 1993). However, there are social reifiers too, and these tend to relate to the social construction of the body (Kirk, 1993; Kirk & Spiller, 1994; Gilroy, 1994) and what Tinning (1985) has termed the Cult of Slenderness. Furthermore the 'slender image' has become a signifier of 'good health'. This is inextricably linked to what might be considered as a health triplex—'exercise = fitness = health' (see Kirk & Colquhoun, 1989; Tinning & Kirk, 1991) which in Australia, underpins curriculum packages such as Daily Physical Education which teachers (often including physical education primary...

Using personal construct theory and narrative methods to facilitate reflexive constructions of teaching physical education

This paper reports on two lengthy studies in Physical education teacher education (PETE) conducted independently but which are epistemologically and methodologically linked. The paper describes how personal construct theory (PCT) and its associated methods provided a means for PETE students to reflexively construct their ideas about teaching physical education over an extended period. Data are drawn from each study in the form of a story of a single participant to indicate how this came about. Furthermore we suggest that PCT might be both a useful research strategy and an effective approach to facilitate professional development in a teacher education setting.

Blood in our hearts or blood on our hands? The viscosity, vitality and validity of Aboriginal 'blood talk'

Blood metaphors abound in everyday social discourse among both Aboriginal and non-Aboriginal people. However, ‘Aboriginal blood talk’, more specifically, is located within a contradictory and contested space in terms of the meanings and values that can be attributed to it by Aboriginal and non-Aboriginal people. In the colonial context, blood talk operated as a tool of oppression for Aboriginal people via blood quantum discourses, yet today, Aboriginal people draw upon notions of blood, namely bloodlines, in articulating their identities. This paper juxtaposes contemporary Aboriginal blood talk as expressed by Aboriginal people against colonial blood talk and critically examines the ongoing political and intellectual governance regarding the validity of this talk in articulating Aboriginalities.

How should regulators deal with entrenched company executives?

The regulatory framework for corporate governance, both in Australia and internationally, shifts between rules based regimes and principles based approach. The rules based regimes are typified by legislation that imposes mandated compliance based rules, such as the Sarbanes Oxley Act. Other regimes, such as Australia’s CLERP 9 and the ASX Corporate Governance Council’s principles, have opted for a disclosure approach. This paper examines these approaches in the context of the non-binding vote rule, which arguably combines aspects of both. The study’s methodology empirically considers evidence relating to actual voting patterns as well as case study examples of the non-binding vote’s effectiveness. Significantly, our analyses show that from its inception, the non-binding vote was effective in motivating management to change the remuneration package to one they perceived as more acceptable to shareholders and that the non-binding vote is an effective regime to manage CEO remuneration (and by extension) executive remuneration.

Financing the project : economic incentives promoting sustainable property development

This chapter is focussed on the various financial instruments and incentives that have been implemented in a range of countries to encourage sustainable developments in all property sectors. It is an area that has undergone substantial change globally since 2008. Sustainable property development has been impacted by the Global Financial Crisis, particularly with regards to the availability of private sector funding and the requirements of funders who now have a more cautious approach to risk. Sustainability, and sometimes a lack of it, is increasingly viewed as a risk in some markets; it is also seen as an area in which governments, through creation of markets and through the use of fiscal instruments can seek to speed up the pace at which the economics of sustainable development makes good business sense. However, it is not just governments that provide the incentive for sustainability- or the dis-incentive for non-sustainable behaviours.

How long does stigma impact property values

Purpose - The purpose of this paper is to determine the impact stigma has on property values and how long the stigma remains after the Not in My Back Yard (NIMBY) structure has been removed. Design/methodology/approach - A quantitative analysis was undertaken, using a high voltage overhead transmission line (HVOTL) case study, to determine the effect on property values prior and post removal of the NIMBY structure. A repeat sales index in conjunction with the regression analysis determined the length of time, the stigma remained after removal of the NIMBY structure. Findings - The results show that while the NIMBY is in place the impact on value is confined to those properties in close proximity. This is in contradiction to the findings, where on removal of the NIMBY the property values of the whole neighbourhood improve with the stigma remaining for 3 to 4 years. Research Implications - The implication of this research is that property Valuers need to change the way they take into account the presence of NIMBYs when valuing property with more emphasis, being placed on the neighbourhood rather than just the properties in close proximity. While the HVOTL was in place, only properties in close proximity were negatively affected, but on removal of the HVOTL the whole neighbourhood increased in value. Originality/value - Results expand on current knowledge by demonstrating the length of time the market takes to adjust to the removal of a NIMBY structure.