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.

Professional indemnity insurance, performance and pre-emptive negligence: The impact of ‘non-claims’

As part of Australian licensing requirements professional valuers are required to maintain a level of professional indemnity insurance. A core feature of any insurance cover is that the insured has an obligation to notify their insurer of both actual and potential claims. An actual claim clearly will impact upon future policies and premiums paid. Notification of a potential claim, whether or not the notification crystallises into an actual claim, also can have an impact upon the insured’s claims history and premiums. The Global Financial Crisis continues to impact upon business practices and land transactions both directly and indirectly. The Australian valuation profession is not exempt from this impact. One example of this ongoing impact is reflected in a worrying practice engaged in by some financial institutions in respect of their loan portfolios. That is, even though the mortgagor is not in default, some institutions are pre-emptively issuing notices of demand regarding potential losses. Further, in some instances such demands are based only on mass appraisal valuations without specific consideration being given to the individual lot in question. The author examines the impact of this practice for the valuation profession and seeks to provide guidance for the appropriate handling of such demands.

Different correlation of Sphingosine-1-Phosphate receptor 1 with receptor activator of nuclear factor kappa B ligand and regulatory T cells in rat periapical lesions

Introduction Sphingosine-1-phosphate receptor 1 (S1P1) is crucial for regulation of immunity and bone metabolism. This study aimed to investigate the expression of S1P1 in rat periapical lesions and its relationship with receptor activator of nuclear factor kappa B ligand (RANKL) and regulatory T (Treg) cells. Methods Periapical lesions were induced by pulp exposure in the first lower molars of 55 Wistar rats. Thirty rats were killed on days 0, 7, 14, 21, 28, and 35, and their mandibles were harvested for x-ray imaging, micro–computed tomography scanning, histologic observation, immunohistochemistry, enzyme histochemistry, and double immunofluorescence analysis. The remaining 25 rats were killed on days 0, 14, 21, 28, and 35, and mandibles were harvested for flow cytometry. Results The volume and area of the periapical lesions increased from day 0 to day 21 and then remained comparably stable after day 28. S1P1-positive cells were observed in the inflammatory periapical regions; the number of S1P1-positive cells peaked at day 14 and then decreased from day 21 to day 35. The distribution of S1P1-positive cells was positively correlated with the dynamics of RANKL-positive cells but was negatively correlated with that of Treg cells. Conclusions S1P1 expression was differentially correlated with RANKL and Treg cell infiltration in the periapical lesions and is therefore a contributing factor to the pathogenesis of such lesions.

Valuers, liability and insurance obligations revisited

- Overview of negligence from the valuer’s perspective - Consideration of defences - Impact of lender conduct - Insurance obligations and impact for the valuer

The Hazards

"The much-anticipated second collection from the 2007 winner of the Thomas Shapcott Prize. Charged with fierce imagination and swift lyricism, Holland-Batt’s cosmopolitan poems reflect a predatory world rife with hazards both real and imagined. Opening with a vision of a leveret’s agonising death by myxomatosis and closing with a lover disappearing into dangerous waters, this collection careens through diverse geographical territory – from haunted post-colonial landscapes in Australia to brutal animal hierarchies in the cloud forests of Nicaragua. Engaging everywhere with questions of violence and loss, erasure and extinction, The Hazards inhabits unsettling terrain, unafraid to veer straight into turbulence."--Publisher website

Natural hazards and land use planning: How resilient must a landowner be?

The past decade has seen an increase in the occurrence of natural hazards and the experience in Australia has led to a reconsideration of the planning for natural hazards by government and to the adoption of a whole-of-nation resilience-based approach to disaster management. A key component of creating community resilience is the integration of disaster management with government and community strategic planning in relation to the social, built, economic and natural environments. Joint responsibility of government and the community for ‘land use planning systems and building control arrangements [which] reduce, as far as is practicable, community exposure to unreasonable risks from known hazards’, is a critical element of a resilient community. As the responsibility for the implementation of land use planning policies in Australia is generally with local governments, this paper will examine whether, in light of improved predictive technology, the failure of a local government to adequately foresee and make provision for a known hazard will give rise to liability for damage or loss of property caused by that hazard.

The impact of the health insurance program on the near-poor in Vietnam

This thesis is a cross-sectional study of a health insurance scheme for a representative sample of the near-poor in Cao Lanh district, Dong Thap province, Vietnam. It examines insurance coverage, health service utilisation, out-of-pocket expenditures and their associated factors. The research findings contribute evidence for policy makers who seek to improve the health insurance scheme for socioeconomically disadvantaged people in Vietnam, which is an important component of national efforts to implement universal health insurance. This community-level research adds to the evidence-base needed to improve the insurance system and thereby influence the quality of health care services.

'I love PEMCO' : Creating conversation worthy buzz in the insurance industry with word of mouth marketing

Surveys by PR-COM, a communications agency, indicate that leading German companies (1) have not recognized the relevance of social media yet or (2) have difficulties with implementing the concept (Meiners et al. 2010). For example, a survey among DAX-companies indicates that their social media activities are “lückenhaft und halbherzig” (PR-COM 2009). Another survey in the German IT industry shows that less than a third had a German and/or English blog (PR-COM 2010), even though blogging is considered a key tool for marketing communications. However, firms “that are not present on social media run the risk of not being in the position to build a positive reputation or to correct negative comments” (Meiners et al. 2010).

Tornado damage and impacts on nuclear facilities in the United States

This report provides an overview of the tornado impact on the safe operation and shutdown of nuclear power plants in the United States. The motivation for this review stems from the damage and failure of the Fukushima nuclear power plant on March 11, 2011. That disaster warrants comparison of the safety measures in place within the global nuclear power industry.

Floods and property values: A hedonic property and efficiency analysis

This study investigates the impact floods on property values using the hedonic property price approach and other relevant econometric techniques. The main objectives of this research are to investigate (1) the impact of the release of flood-risk information and the actual floods on property values (2) the temporal behaviour of negative impacts (3) the property submarket behaviour (4) the behaviour of flood affected vs flood non-affected areas and (5) the property market efficiency. The thesis expanded on the existing literature on natural disasters by applying a range of econometric techniques. Findings of this research are useful for policy decision-making which is aimed at minimizing the negative impacts of natural hazards on property markets. The thesis findings also provide a better framework for decision-making in the property insurance market. The methodological improvements that are made in the thesis will be invaluable for analysing the impacts of natural hazards elsewhere.

The potential role of a late gene expression factor, lef2, from Bombyx mori nuclear polyhedrosis virus in very late gene transcription and DNA replication

Several late gene expression factors (Lefs) have been implicated in fostering high levels of transcription from the very late gene promoters of polyhedrin and p10 from baculoviruses. We cloned and characterized from Bombyx mori nuclear polyhedrosis virus a late gene expression factor (Bmlef2) that encodes a 209-amino-acid protein harboring a Cys-rich C-terminal domain. The temporal transcription profiles of lef2 revealed a 1.2-kb transcript in both delayed early and late periods after virus infection. Transcription start site mapping identified the presence of an aphidicolin-sensitive late transcript arising from a TAAG motif located at -352 nucleotides and an aphidicolin-insensitive early transcript originating from a TTGT motif located 35 nucleotides downstream to a TATA box at -312 nucleotides, with respect to the +1 ATG of lef2. BmLef2 trans-activated very late gene expression from both polyhedrin and p10 promoters in transient expression assays. Internal deletion of the Cys-rich domain from the C-terminal region abolished the transcriptional activation. Inactivation of Lef2 synthesis by antisense lef2 transcripts drastically reduced the very late gene transcription but showed little effect on the expression from immediate early promoter. Decrease in viral DNA synthesis and a reduction in virus titer were observed only when antisense lef2 was expressed under the immediate early (ie-1) promoter. Furthermore, the antisense experiments suggested that lef2 plays a direct role in very late gene transcription.

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.