Utmost good faith in insurance : reform overdue?

Considerable attention has been devoted to the duty or doctrine of utmost good faith in the academic literature and in the courts. This attention ranges from an analysis of the precise legal basis for the duty through a consideration of the continuing nature of that duty in the post-contract environment.It is quite clear that all contracts of insurance are subject to this duty of utmost good faith. What is less clear and certain are the incidents attendant upon such a duty and the scope of the obligations that such a duty imposes. This article examines the relative positions that have been reached in England and Australia and concludes with some recommendations for legislative reform to this area of the law.

Regulatory approaches to genetic testing in insurance

Rapid advancements in the field of genetic science have engendered considerable debate, speculation, misinformation and legislative action worldwide. While programs such as the Human Genome Project bring the prospect of seemingly miraculous medical advancements within imminent reach, they also create the potential for significant invasions of traditional areas of privacy and human dignity through laying the potential foundation for new forms of discrimination in insurance, employment and immigration regulation. The insurance industry, which has of course, traditionally been premised on discrimination as part of its underwriting process, is proving to be the frontline of this regulatory battle with extensive legislation, guidelines and debate marking its progress.

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.

The insured's non-disclosure in the formation of insurance contracts : a comparative perspective

The requirements that an insured disclose all facts material to a transaction as well as not misrepresent material facts in the formation of an insurance contract are universal requirements of insurance law. The nature and extent of these obligations varies from one jurisdiction to the next. Disclosure in the insurance context is distinct from the general approach in commercial contracts, and in others between persons dealing at arm's length. It is the purpose of this article therefore to examine, on a comparative basis, the approaches adopted in the Anglo-Commonwealth context of England, Australia New Zealand and Singapore to the resolution of disclose issues in the formation of insurance contracts. Particular attention is focused on the Insurance Contracts Act 1984 (Australia) as this statue effects the most significant overhaul of the common law and the National Consumer Council in the United Kingdom has advocated that similar reforms be adopted.

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.

Tracking rail safety : incident and accident investigation in Australia

Scoping Project: Currently no national or structured learning framework available in Aus or NZ Current Project: Develop a national training program & capability framework for rail incident investigators - Establish the potential market demand - Define the curricula for a multi-level national training program - Explore training providers & delivery options

Systems-based accident analysis in the led outdoor activity domain : application and evaluation of a risk management framework

Safety-compromising accidents occur regularly in the led outdoor activity domain. Formal accident analysis is an accepted means of understanding such events and improving safety. Despite this, there remains no universally accepted framework for collecting and analysing accident data in the led outdoor activity domain. This article presents an application of Rasmussen's risk management framework to the analysis of the Lyme Bay sea canoeing incident. This involved the development of an Accimap, the outputs of which were used to evaluate seven predictions made by the framework. The Accimap output was also compared to an analysis using an existing model from the led outdoor activity domain. In conclusion, the Accimap output was found to be more comprehensive and supported all seven of the risk management framework's predictions, suggesting that it shows promise as a theoretically underpinned approach for analysing, and learning from, accidents in the led outdoor activity domain.

Development of accident modification factors on intersection crash maneuvers

In order to estimate the safety impact of roadway interventions engineers need to collect, analyze, and interpret the results of carefully implemented data collection efforts. The intent of these studies is to develop Accident Modification Factors (AMF's), which are used to predict the safety impact of various road safety features at other locations or in upon future enhancements. Models are typically estimated to estimate AMF's for total crashes, but can and should be estimated for crash outcomes as well. This paper first describes data collected with the intent estimate AMF's for rural intersections in the state of Georgia within the United Sates. Modeling results of crash prediction models for the crash outcomes: angle, head-on, rear-end, sideswipe (same direction and opposite direction) and pedestrian-involved crashes are then presented and discussed. The analysis reveals that factors such as the Annual Average Daily Traffic (AADT), the presence of turning lanes, and the number of driveways have a positive association with each type of crash, while the median width and the presence of lighting are negatively associated with crashes. The model covariates are related to crash outcome in different ways, suggesting that crash outcomes are associated with different pre-crash conditions.

Empirical investigation of interactive highway safety design model accident prediction algorithm : Rural intersections

One major gap in transportation system safety management is the ability to assess the safety ramifications of design changes for both new road projects and modifications to existing roads. To fulfill this need, FHWA and its many partners are developing a safety forecasting tool, the Interactive Highway Safety Design Model (IHSDM). The tool will be used by roadway design engineers, safety analysts, and planners throughout the United States. As such, the statistical models embedded in IHSDM will need to be able to forecast safety impacts under a wide range of roadway configurations and environmental conditions for a wide range of driver populations and will need to be able to capture elements of driving risk across states. One of the IHSDM algorithms developed by FHWA and its contractors is for forecasting accidents on rural road segments and rural intersections. The methodological approach is to use predictive models for specific base conditions, with traffic volume information as the sole explanatory variable for crashes, and then to apply regional or state calibration factors and accident modification factors (AMFs) to estimate the impact on accidents of geometric characteristics that differ from the base model conditions. In the majority of past approaches, AMFs are derived from parameter estimates associated with the explanatory variables. A recent study for FHWA used a multistate database to examine in detail the use of the algorithm with the base model-AMF approach and explored alternative base model forms as well as the use of full models that included nontraffic-related variables and other approaches to estimate AMFs. That research effort is reported. The results support the IHSDM methodology.

Accident prediction model for railway-highway interfaces

Considerable past research has explored relationships between vehicle accidents and geometric design and operation of road sections, but relatively little research has examined factors that contribute to accidents at railway-highway crossings. Between 1998 and 2002 in Korea, about 95% of railway accidents occurred at highway-rail grade crossings, resulting in 402 accidents, of which about 20% resulted in fatalities. These statistics suggest that efforts to reduce crashes at these locations may significantly reduce crash costs. The objective of this paper is to examine factors associated with railroad crossing crashes. Various statistical models are used to examine the relationships between crossing accidents and features of crossings. The paper also compares accident models developed in the United States and the safety effects of crossing elements obtained using Korea data. Crashes were observed to increase with total traffic volume and average daily train volumes. The proximity of crossings to commercial areas and the distance of the train detector from crossings are associated with larger numbers of accidents, as is the time duration between the activation of warning signals and gates. The unique contributions of the paper are the application of the gamma probability model to deal with underdispersion and the insights obtained regarding railroad crossing related vehicle crashes. Considerable past research has explored relationships between vehicle accidents and geometric design and operation of road sections, but relatively little research has examined factors that contribute to accidents at railway-highway crossings. Between 1998 and 2002 in Korea, about 95% of railway accidents occurred at highway-rail grade crossings, resulting in 402 accidents, of which about 20% resulted in fatalities. These statistics suggest that efforts to reduce crashes at these locations may significantly reduce crash costs. The objective of this paper is to examine factors associated with railroad crossing crashes. Various statistical models are used to examine the relationships between crossing accidents and features of crossings. The paper also compares accident models developed in the United States and the safety effects of crossing elements obtained using Korea data. Crashes were observed to increase with total traffic volume and average daily train volumes. The proximity of crossings to commercial areas and the distance of the train detector from crossings are associated with larger numbers of accidents, as is the time duration between the activation of warning signals and gates. The unique contributions of the paper are the application of the gamma probability model to deal with underdispersion and the insights obtained regarding railroad crossing related vehicle crashes.

Development of accident prediction models for rural highway intersections

A study was done to develop macrolevel crash prediction models that can be used to understand and identify effective countermeasures for improving signalized highway intersections and multilane stop-controlled highway intersections in rural areas. Poisson and negative binomial regression models were fit to intersection crash data from Georgia, California, and Michigan. To assess the suitability of the models, several goodness-of-fit measures were computed. The statistical models were then used to shed light on the relationships between crash occurrence and traffic and geometric features of the rural signalized intersections. The results revealed that traffic flow variables significantly affected the overall safety performance of the intersections regardless of intersection type and that the geometric features of intersections varied across intersection type and also influenced crash type.

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.

Young drivers’ optimism bias for accident risk and driving skill : accountability and insight experience manipulations

This study aimed to determine whether two brief, low cost interventions would reduce young drivers’ optimism bias for their driving skills and accident risk perceptions. This tendency for such drivers to perceive themselves as more skilful and less prone to driving accidents than their peers may lead to less engagement in precautionary driving behaviours and a greater engagement in more dangerous driving behaviour. 243 young drivers (aged 17 - 25 years) were randomly allocated to one of three groups: accountability, insight or control. All participants provided both overall and specific situation ratings of their driving skills and accident risk relative to a typical young driver. Prior to completing the questionnaire, those in the accountability condition were first advised that their driving skills and accident risk would be later assessed via a driving simulator. Those in the insight condition first underwent a difficult computer-based hazard perception task designed to provide participants with insight into their potential limitations when responding to hazards in difficult and unpredictable driving situations. Participants in the control condition completed only the questionnaire. Results showed that the accountability manipulation was effective in reducing optimism bias in terms of participants’ comparative ratings of their accident risk in specific situations, though only for less experienced drivers. In contrast, among more experienced males, participants in the insight condition showed greater optimism bias for overall accident risk than their counterparts in the accountability or control groups. There were no effects of the manipulations on drivers’ skills ratings. The differential effects of the two types of manipulations on optimism bias relating to one’s accident risk in different subgroups of the young driver sample highlight the importance of targeting interventions for different levels of experience. Accountability interventions may be beneficial for less experienced young drivers but the results suggest exercising caution with the use of insight type interventions, particularly hazard perception style tasks, for more experienced young drivers typically still in the provisional stage of graduated licensing systems.

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.