Hicksons continues to grow with latest round of...

Does a wrongful act have to be inadvertent? What is the scope of the contractual liability exclusion?

A perpetrator of child sexual abuse can stay a claim in circumstances where the perpetrator can establish “sufficiently exceptional” prejudice. In the historical abuse context this is not so difficult.

A recent decision of the Supreme Court of Queensland restricts the definition of “product” in a liability policy.

The defence of liability claims is enhanced by good document management practices by insurers and their insureds.

Insurers are sometimes encouraged to refuse claims when an insured gives false answers to an investigator.  Great care needs to be taken to look at the answers in the context of all the evidence.  Proving that the answers are false is not sufficient.  It has to be proved that the answers are knowingly false and made to induce payment.  This is not an easy burden.  The insurer need to ask itself, among other things: are the answers in fact false;  is there an interpretation to the answers which may favour the insured;  even if the answer is false, could the insured be given the benefit of the doubt by finding that the insured was merely mistaken;  has the insured otherwise acted in a fashion more consistent with honesty (e.g. as in the following case, giving the insurer, by means of authorities etc, access to the accurate information despite the insured’s answer being wrong).

The Courts are mindful that a liability insurance policy must have business efficacy, however, there are limits, and recklessness that goes beyond mere negligence is often sought to be excluded via policy terms and conditions.

The NSW Law Reform Commission’s review of section 6 the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).

In Mansfield v Great Lakes Council (2016) NSWCA 204 (‘Mansfield’s case’) the plaintiff was driving a truck along a single lane country road when, as he drove across a culvert, the bank of the left side of the road gave way and the truck rolled over. 

Penrith City Council v Healey; GIO General Ltd v Healey [2016] NSWCA 161 related to a claim commenced by Mr Healey against Penrith City Council (‘the Council’) and GIO General Ltd (‘GIO’), as the public insurer of Usshers Pty Ltd (‘Usshers’) (now deregistered), in relation to a shoulder injury suffered during the course of his employment as a garbage collector. 

In this recent NSW Court of Appeal decision, an employer escaped liability for an injury allegedly suffered by a worker in the course of his employment as a trade’s assistant. The worker allegedly suffered a severe aggravation of a pre-existing injury when, while holding a beam that was being cut, the beam fell unexpectedly towards him.

On 29 June 2009, 2 professional jockeys were involved in a riding accident during a professional horserace at Queanbeyan.  Mr Goode was riding a horse named Shot of the Rails and Mr Angland was riding Port Gallery.

In Kalloghlian v Chubb Insurance Company of Australia Ltd [2016] NSWSC 902, an insured made a claim under a contents policy for a lost Rolex watch.  The insurer rejected the claim and the insured commenced proceedings in Local Court.  The magistrate found in favour of the insurer. The insured appealed to the NSW Supreme Court asserting an error of law.

Vincent v Woolworths Ltd [2016] NSWCA 40 relates to a claim brought by Ms Vincent (plaintiff) in respect to injuries sustained when she stepped backwards off a small safety step ladder in a Woolworths Supermarket and collided with a shopping trolley being pushed by a customer.

The Court of Appeal of Western Australia has weathered a storm of creative arguments to hold that “normally living” at a residence, within the meaning of an exclusion clause (in home insurance liability cover), is not an ‘act’ within the meaning, or attracting the operation, of section 54(1) of the Insurance Contracts Act 1984 (Cth)(ICA).