INSURANCE LAW Incorporating NZILA News
www.aila.com.au www.nzila.org AUGUST 2007
Tort reform “has gone too far”
Justice David Ipp, head of the Ipp premiums”, as it was more difficult far. Too great a reduction in risk
panel that reported to the Federal for insurers to reliably predict the results in reduced demand for
Government in 2002 on the need extent of liability. Justice Ipp said insurance”.
for tort reform, says the pendulum insurers and lawyers needed to
unite to approach state and federal Insurers could cope with any
has swung too far.
governments to achieve “a greater risks capable of reasonable
“The law is not treating all assessment, all that was required
degree of harmonisation”.
citizens equally,” he told the was for insurers to calculate and
AILA Queensland insurance Inconsistencies between the charge premiums appropriate to
law intensive at Noosa. He said laws were “the bane of the law the risk. While lawyers claimed
Australia needed “a fair, reasonably of negligence” and have been altruism as their reason for
harmonious set of laws of fuelled by the political influences seeking tort reform roll back,
negligence”. Reforms implemented of different groups, for example, they had difficulty persuading
since 2002 went “substantially insurers, lawyers and victims’ the media and the public because
further” than his panel had groups. Justice Ipp said while it maintaining and increasing
recommended. was to insurers’ advantage for the litigation was “in their financial
potential liability of insureds and interest”.
For example, the NSW Civil
damages awards to be reduced,
Liabilities Act (CLA) gave greater Continued page 5.
“this should not be taken too
protection to public authorities
than was recommended and was
“substantially inconsistent with the SAVOUR CHRISTCHURCH’S PLEASURES
notion that govt authorities should
be treated before the law in the
same way as an ordinary citizen”.
He said protection for volunteers
for negligent acts and protection
from personal liability for good
Samaritans went beyond the
panel’s recommendations. Justice
Ipp said the current debate
was directed against unfairness
created by different negligence-
related laws, like the CLA, the
NSW Workers’ Compensation Act
(for common law claims) and the
NSW Motor Accidents Compensation
Act. Thresholds varied, as did
the definition of permanent
Three victims with like injuries
could receive “vastly different
damages awards”, depending
whether the injury occurred
at work, in a car accident, or
in some other way. State laws
differed in damages awards and Punting on the Avon River at Christchurch is one of the pleasures of the city that awaits
delegates to the joint AILA-NZILA conference in September. The registration brochure is
that “probably results in higher
available at www.aila.com.au or www.nzila.org. For more information, see page 4.
AILA-NZILA NEWS • PAGE 1
News from the branches
Schwab, CEO of the Fremantle AILA members are welcome to
Tasmania Dockers. Mr Schwab, who attend the Insurance Council of
has completed an intensive Australia’s Canberra conference at
By Brian Aherne management course at Harvard Old Parliament House, on August
University, spoke on leadership 15. The topic is Adaptive responses
The first seminar for 2007 was
and decision making in a volatile, to climate change. For details, go
an outstanding success with
high-profile environment. He to www.insurancecouncil.com.au.
an attendance of 70 people.
Ian Ritchard, registrar of the spoke openly and frankly about
Supreme Court of Tasmania, his life experiences working for New South Wales
spoke on mediation and settlement football clubs and about the many
conferences. challenges faced by the Fremantle by Penny Paterson
National president Steve Knight Dockers since he has been CEO.
The Twilight Seminar series is now
addressed attendees on national The July seminar considered three over for another year.
issues. different but related insurance
topics. Libby Swift, from Aon As usual, a very successful series
Organisation for the July seminar thanks to the quality of the
is well under way. The guest Risk Services, spoke on what an
insured can and cannot do while speakers and presenters and all
speaker is Philip Rowell, a partner
acting as a prudent uninsured. the members who attended. Thank
in Monahan + Rowell, who will
Barrister Michael Hawkins spoke you to Minter Ellison for providing
speak on asbestos claims and
on aggregation clauses and what a wonderful venue and drinks and
happens in cases where there is nibbles after the seminar.
The committee is actively engaged
in pursuing new members and under-insurance. Garry Nutt, The next seminar is the Geoff
contact is ongoing with law firms a partner at Jarman McKenna, Masel Memorial Lecture,
and insurers. spoke on the duty of good faith presented by Prof Greg Reinhardt
and what conduct by insurers or on August 22 and hosted at DLA
their advisers could potentially Phillips Fox. Go to the website,
Western Australia lead to an insurer being de- www.aila.com.au, for more
by Craig Hollett
The remaining seminars for 2007 The branch is in the planning
By the time members read this
are: stage for seminars looking at
article, the WA branch will have
held its flagship event for 2007 August 15 - Vicarious liability. statutory schemes and reinsurance.
- a dinner-dance at the Royal Speaker is Chris Rimmer, Jarman Details will be available soon.
Freshwater Bay Yacht Club. McKenna.
To purchase papers presented at
The theme this year was September 12 - Workers’ the seminars or if you have ideas
Bollywood and guests were compensation appeals to the for topics you would like to see
encouraged to dress as their commissioner and questions of law. presented, please contact me
favourite Bollywood stars. The Speaker is Judge Philip McCann. (see p12).
event promised to be a star- October 17 - Geoff Masel
studded night and guests,
including AILA national president
Memorial Lecture. Speaker is Prof
Steve Knight, enjoyed a superb November 21 - AGM and The By Peter Chapman
meal and live entertainment by year that was. Speaker yet to be
the band Ruby Tuesday. During Activities in Victoria continue
finalised. during winter with a return to
the evening there were raffles and
a silent auction to raise much- “normal” weather.
needed funds for the Princess Australian Capital The state has cold fronts coming
Margaret Hospital for Children Territory in from the west and the east coast
Foundation. The social committee, lows dropping flooding rain.
Sue Taylor, John Charouhas, Mark By Doug Galbraith
Birbeck and Craig Hollett, put a The proposed subject of KPMG’s
The ACT branch hosts the Andries Terblanché on the
lot of work into making the night Geoff Masel Memorial Lecture
a success. financial health of the Australian
on Wednesday, August 29, at and world insurance markets was
The WA Branch presented lunchtime at the Teatro Vivaldi changed and members and guests
a seminar on June 13 with a restaurant, Canberra. The speaker were treated to a dissertation on
difference. The title was Finding is Prof Greg Rinehardt; the topic
global risk management.
something - risk management is Can courts ignore the reality of
and high performance sport, insurance in litigation? Invites will Dr Terblanché covered the
with guest speaker Cameron be emailed soon. possibilities from global epidemics
AILA-NZILA NEWS • PAGE 2
News from the State Branches continued AILA launches
to local conflict and placed them underwriter’s perspective”. AILA has launched a new website.
in a matrix to demonstrate likely Qld hosts the annual Geoff Masel
impacts not only for business but David McKenna, chairman of a
Memorial Lecture on August 23,
personally. It was a well-prepared, board subcommittee responsible
with guest speaker Prof Greg
Reinhardt. for the website, said: “The board is
Friday, July 20, was the annual cognisant of the enormous amount
In September, Anthony Collins, of
joint AILA-ANZIIF General of information now gleaned from
counsel, will conduct a workshop
Insurance Law half-day workshop. the internet for work, social,
Chair Raff Pisano (Minter Ellison) considering policy wording
presented speakers Fred Hawke issues that commonly arise for sporting or education purposes
(Clayton Utz) on the Insurance consideration. It will include and wants to ensure members
Contracts Act; Robert Minc (Phillips appropriate advices and responses and browsers continue to have a
Fox) on liability law and Mark in dealing with insurer clients and superior web service that informs,
Attard (Monahan + Rowell) on other insurers. educates and assists them.”
With the speakers covering such South Australia One objective was that
www.aila.com.au was always
a range of topics and case law,
they were expected to take what by John Homburg available and running at peak
sometimes seem esoteric matters performance, he said.
On May 16, John White addressed
and emphasise their relevance to
daily claims. RACV Bourke St was members and guests at a breakfast The new home page has a large
the venue. briefing. rotating panel that markets
Mr White is a barrister at Mitchell national events (for example,
The mid-August presentation is a
panel style interactive presenting Chambers. In his presentation, conferences, the Geoff Masel
a practical problem and analysing “Recreation and risks - accidents memorial lectures, and AIDA
the approach taken from the while having fun”, he reviewed
events) major state events and
workplace through the insurer and developments in the law on
items of interest.
legal analysis. tortuous liability for personal
injury arising from recreational The website was last updated
The year continues with the and other activities. His
Geoff Masel Memorial Lecture on in 2001 and technology has
presentation was well received by
Wednesday, September 12, and accelerated rapidly since then.
a near-capacity audience.
further events are scheduled for The subcommittee is committed
November and December. SA’s next professional development to ensuring members have access
session is a much-anticipated, half-
to a market standard web service,
Queensland day seminar, titled “The changing
irrespective of the information
workplace - employers’ liabilities,
by Rebecca Stevens duties & risks symposium”. they require.
The Queensland branch has had It is on August 1 at 2pm at National president Steve Knight
a busy first half of 2007 and is the Lyrics Room, Adelaide said: “This latest model reinforces
very pleased to have had such Festival Centre, followed by the board’s belief that all services
positive feedback from the annual refreshments from 5pm. The for members, event details,
insurance law intensive at the organising committee has worked
Noosa Sheraton on May 17-18. national conference and speakers’
extraordinarily hard to assemble a
cast of eminent speakers to address papers be constantly displayed
Delegates came from all over the
employer issues in the current and and maintained live on the web
country and were impressed with
the quality of speakers and the ever-changing work environment. to ensure members or browsers
program content. The intensive receive instant access to insurance
The symposium will look at
has provided a good platform for questions including: To what law educational information.
the committee to start planning extent is an employer liable for the
the national conference in 2008. “The board is aware of the
conduct of an employee? What is
cost efficiencies of electronic
Following the intensive, the the current state of non-delegable
and statutory duties? What will event management and
committee was very pleased to
have had an opportunity to invite the workplace of the future look recommends event advices
Peter Nash, from Sportscover, to like and what is the insurance are sent electronically. If you
share his experiences in starting a industry’s response to likely risks? are not receiving event advice
Lloyd’s syndicate (see page 11). Registration forms will be electronically, please click on the
Peter O’Leary, senior underwriter, forwarded to members soon. Contact AILA button and advise
casualty, from Liberty For non-AILA members, please your secretariat of your email
International Underwriters, will contact the secretariat on details.”
present over lunch on August 1 on email@example.com for
“Impact of tort law reform from an further details and to register.
AILA-NZILA NEWS • PAGE 3
NZILA President’s message
New Zealand has few idiosyncratic damages and nervous shock
NZILA Contacts pieces of legislation but one that is damages, such as those claimed in
President unique in common law jurisdictions Queenstown Lakes District Council
Christine Meechan (Auckland) is the Injury Prevention Rehabilitation v Palmer  1 NZLR 549,
firstname.lastname@example.org & Compensation Act 2001, which is remain, but the prudent tourist
Vice President the foundation of New should ensure he or she
Roger Scholes (Auckland) Zealand’s accident is well covered for all
email@example.com compensation regime. eventualities.
Frank Rose (Auckland)
New Zealand effectively Delegates at the joint
firstname.lastname@example.org did away with personal AILA-NZILA conference in
injury litigation Christchurch on September
Darryl Cowan (Auckland) and implemented a 19-21 will not be called on
email@example.com state-funded system to engage in any death-
Committee members: of compensation in defying activities during
1972. Although the the course of the program.
Nigel Allott (Christchurch)
original scheme has Those planning to enjoy
been significantly the challenges that lie
Melanie Biss (Wellington) Christine Meechan
modified, the central beyond Christchurch, such
plank of the legislation as Queenstown’s bungy
Neil Campbell (Auckland)
remains. That is, the bar it creates to jumping, mountain biking and
claimes for compensatory damages river rafting, would be well advised
Paul Michalik (Wellington)
for personal injury by an accident to check their travel and income
suffered in New Zealand. It applies protection cover.
Mark Dennett (Auckland) to New Zealand residents and
firstname.lastname@example.org I look forward to seeing delegates
Craig Langstone (Auckland) from both sides of the Tasman in
email@example.com Put simply, in New Zealand you
Christchurch in September.
Richard Johnstone (Christchurch) cannot sue for compensation
firstname.lastname@example.org for personal injury by accident. Christine Meechan
Limited claims for exemplary NZILA President
The AILA-NZILA joint conference The program continues with and Professor Duncan Webb,
organising committee has presentations from Colin Croly, University of Canterbury.
assembled an impressive array of Barlow Lyde & Gilbert, London, After morning tea, there are
speakers for The Ties that Bind. Prof Greg Reinhardt, Monash concurrent sessions on insurance
The conference is in Christchurch University, Auckland QC Michael law issues for Australia and
on September 19-21. Registration Ring, and Prof Robert Merkin, New Zealand.
brochures have been mailed to University of Southampton.
Michael Gill, from DLA Phillips
members or can be downloaded at There are practical workshops in Fox, will provide the conference
www.aila.com.au. the afternoon, covering expert summary.
The Christchurch Convention evidence, fire investigations and
the AIDA reinsurance working Then it’s time for delegates to
Centre is the venue for a welcome head to Christchurch’s restaurant
reception on Wednesday, party.
strip along the Avon River for “the
September 19. The conference The afternoon is rounded off with long lunch”.
begins the next morning, with a session on computer forensics
opening remarks from NZILA and presentations on driver The 2007 AILA-NZILA conference
president Christine Meechan and impairment through alcohol and is an event not to be missed. To
AILA president Steve Knight. other substances. register, go to www.aila.com.au or
The keynote addresses start with The conference dinner that
Justice Bruce Robertson, NZ Court evening is under the aircraft wings
of Appeal. He’ll talk about the at the Wigram Air Force Museum.
connections between the NZ and Climate change is the theme for
Australian insurance law industries Friday morning, September 21,
and the impact on reform in NZ. with presentations from IAG chief
Munich Re’s Heinrich Eder will risk officer Tony Coleman, Finity
follow, speaking on emerging risks. Consulting’s Colin Brigstock,
AILA-NZILA NEWS • PAGE 4
AILA President’s message Damages awards
At the AILA Queensland Insurance 2006. That event, too, saw many From page 1.
Law Intensive at Noosa, I appealed homeowners suffer through a lack
Justice Ipp said the medical
to members to tell me what they of insurance cover.
profession had been a “powerful,
think of AILA - good or bad. The Federal Government has influential body” in the 2002
I’d like to get feedback on the released its proposed Bill to debate on tort reform but,
member services we provide, regulate direct offshore foreign because its position had been
including events, the website and insurers (DOFIs). “ameliorated”, it was not active in
AILA-NZILA News. If Assistant treasurer the current debate.
you have comments Peter Dutton has
or suggestions, please Justice Ipp was critical of the use
said the reforms
email me at stephen. of approved medical specialists
are designed to
email@example.com. (AMSs) to assess the threshold of
address the risk to
au. permanent impairment under
the NSW Workplace Injury
I also took the and consumers from
Management and Workers’
opportunity to thank unauthorised DOFIs
Compensation Act 1998.
the many volunteers that are unscrupulous
in the branches or fail. He has said Under the NSW CLA, courts
who contribute “tailored prudential determined damages thresholds
to AILA being standards” will be “in the traditional and normal way”.
such a marvellous implemented so
An AMS assessment was critical to
association. AILA categories of DOFIs
the success of a plaintiff ’s common
is the largest that pose a lower risk
law claim, but an AMS had no
chapter in AIDA, would face a reduced
security of tenure. “A disinterested
the international regulatory burden.
observer may think this power of
insurance law The government is continuing appointment is capable
association, with more now going through a of influencing the decisions of
than 1,500 members. consultation period to determine [the AMSs] who wish to have their
However, there are many more how to frame the regulations that contracts renewed.” That allowed
people participating in the field would dovetail with the Bill and a perception of bias “even if the
who are not members. I encourage spell out what exemptions would be adjudicator is a person of the
all members to try and introduce available. highest integrity”.
new members, particularly younger Access to foreign insurers that are Justice Ipp said the AMSs could
ones. AILA offers great friendships well capitalised and well regulated practise privately as medico-legal
and collegiality with fellow is an important element of the advisers and therefore receive
members. Australian insurance market, so it income from solicitors or a party
Since the last issue of AILA-NZILA is vital that the final result does not to a threshold dispute. “Who
News, it has been a busy time in the reduce competition and capacity in would feel secure knowing that the
insurance industry. The massive the market by reducing access to person deciding their case is being
storms that hit northern NSW legitimate DOFIs. paid for doing other work for the
have seen an influx of claims that The WA District Court is set to test opposition?”
the Insurance Council is now the validity of indemnities sought by
estimating will cost the industry insurers against claims on builders’ reinsurance contracts without
about $350 million. My sympathies warranty policies. On June 19, APRA approval. While disputing
are with those who lost family and WA District Court Judge Philip the argument, Vero said even if the
friends and whose properties were Eaton ruled that an argument that indemnities were reinsurance, lack
damaged. indemnities were an illegal form of of APRA approval in itself did not
The NSW storms were followed reinsurance should be tested at trial. make them unenforceable. Judge
closely by floods in Victoria. Both Judge Eaton was hearing an appeal Eaton said there was “a triable issue
events have highlighted the major by a Perth couple against an earlier as to the illegality and enforceability
problem of under or noninsurance. judgement upholding an indemnity of the general deeds of indemnity”
It is vital that all homeowners claim made against them by Vero required by builders’ warranty
appreciate the need for insurance Insurance Ltd, after their building insurers. It will be an interesting
cover so they are not left destitute company collapsed. Judge Eaton argument and I look forward to
when tragedies like this occur. said the central issue was whether reading the outcome. (WADC, Vero
the indemnities were reinsurance. Insurance Ltd v Harden-Jones & Anor,
These events are shaping up to
The couple had argued they were 98/2007)
be more costly to the insurance
industry than Cyclone Larry, which and that Vero was breaching the Steve Knight
hit far north Queensland in March Insurance Act by entering into AILA President
AILA-NZILA NEWS • PAGE 5
Future forecast AILA Qld Insurance Law
frightening Warning on ‘tweaking’ at general
Delegates to the AILA Qld Governments must “be careful insurance was a disincentive.
insurance law intensive could be with tweaking legislation relating General insurance was taxed
forgiven for going home very to general insurance”, because higher than gambling in some
scared, after two keynote speakers states.
of the potential impact on the
finished their addresses.
The theme was “Insurance climate Ms Kelly said
Kelly, Insurance AILA-NZILA News editor the ICA would
change: What’s the forecast?” Council (ICA)
Kate Tilley attended the continue to
Once KPMG chair of financial chief executive pursue non-
services Dr Andres Terblanché officer, told the 2007 AILA Queensland insurance and
and Queensland University of intensive. Insurance Law Intensive work with
Technology assistant director,
development, Wayne Delaforce, She said statistics at Noosa. This is a governments to
had spoken, it looked somewhat showed the summary of some of the develop policies
bleak. industry paid $70 to tackle it.
Dr Terblanché detailed the global million in claims On flood
picture of big risks on the horizon, each working day insurance, Ms
but tempered his views with the and the figure was now pushing Kelly said consumers did not
comment that they were “ambient, $75 million. Direct premium understand insurers’ different
blindside risks. Collectively, we can revenue was $27.9 billion a year definitions and the industry was
make a difference and make the and the industry employed 58,000 therefore looking at a minimum
world a safer place”. people. standard definition. While the
The big risks included The ICA was an important ACCC may fear the move was
nanotechnology, failed and anticompetitive, the ICA argued it
lobby group, which conducted
falling states, a proliferation of was a minimum and policyholders
a cost-benefit analysis on every
weapons of mass destruction, could negotiate for additional
wars, international terrorism, submission it put to government.
It was being asked for input coverage.
chronic disease, weather-related
catastrophes, climate change, to government planning for On tort reforms, Ms Kelly
liability regimes, fiscal crises... pandemics, natural disasters, and said debate was not helped by
the list went on. other issues. inconsistency in the arguments.
Dr Terblanché predicted the price The ICA had implemented 36 “Some want every case in court,
of oil would “go through the committees with independent regardless of whether it’s a broken
roof ”, making international travel experts to assist the council to fingernail or a broken neck.”
cost-prohibitive. develop policy and drive debate. Any windback would result in
If a pandemic occurred, hospitals insurance being less available and
would overflow. “They are like ICA’s current priorities were less affordable, she said.
fast-food shops, not designed non-insurance, flood insurance,
catastrophe co-ordination Tort reform windback needed
for long-term occupation,” Dr
Terblanché said. A totally different arrangements, public liability Governments’ willingness to adopt
social order would eventuate reforms, tax reform (including fire “special compensation regimes” for
because schools and communities services levies and stamp duty), specific issues was evidence that
would close and people would and climate change. compensation under tort reforms
not use public transport or go was inadequate, Gerry Murphy,
shopping. Until the ICA released its research
in March, there had been “no senior partner at Murphy Schmidt,
There was a four in five chance a analysis of non-insurance”, Ms Brisbane, told the intensive.
pandemic would not occur, but it
Kelly said. The research found a He cited the Queensland
was “something to keep an eye on”.
close correlation between financial Government’s scheme to
Mr Delaforce focused on the position and insurance; low- compensate victims of former
smaller picture, narrowing his income earners were less likely to Bundaberg Hospital surgeon
focus to south-east Queensland. be insured. Non-insureds were Dr Jayant Patel, and the NSW
But much of the message was the
more likely to be young, live in Government’s compensation
cities, be born in non-western scheme for Waterfall train disaster
The planning process was out of countries and be low-income victims as examples.
kilter with the projected growth earners.
and the region was “significantly He said the view that the
under-resourced for growth”. That suggested people insured pendulum had swung too far
Congestion on the roads would only when they had the disposable was gaining acceptance in the
continue and “the slower you go, income to do so. Tax of up to 40% community, but he could not say
the more you pollute”. in some jurisdictions on home when rollback was likely to occur.
AILA-NZILA NEWS • PAGE 6
“Fairness and justice will eventually comprehensive. “We drill, train a consequence of the insured’s
prevail; but I don’t know when.” and exercise for all possible negligence would probably be facts
There would be no immediate scenarios.” that might give rise to a claim.
rollback but, in Queensland,
BAC had 31/2 times the land Increased claims for agri-insurers
lobbying focused on trying to stop
mass of Sydney airport, which
the injury scale value system being Agri-insurers can expect increased
was advantageous if “the worst
applied to CTP claims. claims as climate change impacts
thing happens”. “Mangroves and
on the rural industry, says Carter
He said the Queensland workers’ migratory birds would suffer
Newell partner Daniel Best.
compensation scheme, which before people and houses.”
allowed access to common law, He told the intensive that
The airport had seen a massive
was a success. Premium rates were underwriters needed to be aware
increase in aviation and non-
the nation’s lowest and 99.7% of of claimants’ financial stresses and
aviation business since its
claims were resolved within nine categorise them to understand
privatisation 10 years ago. It was
months, compared with 45.1% their claim motivation. Professional
becoming an “aerotropolis”, or
under Comcare. The Queensland farmers were diversified,
airport city. Firms were clustering
scheme’s dispute rate was 4.1% of sophisticated, business-oriented
around airports because they
claims, compared with 8.8% for and low risk.
provided fast access to global
Comcare, Mr Murphy said.
supply chains. The trend followed Traditionalists were lifestyle
“Comcare is an administrative, the first four waves of urban farmers and family businesses
bureaucratic nightmare.” development, which clustered and more likely to litigate. The
Abolishing common law access around seaports, rivers, railways “battlers” were high risk, but
was “a quick fix, but it eventually and roads. would exit the industry.
catches up with you”, he said.
BAC’s annual passenger figures Mr Best predicted an increase in
The Victorian workers’ were 17.5 million, compared with fraudulent and spurious claims
compensation scheme had 29 million at Sydney. In 20 years, and claims being used to offset
reinstated common law access 40 million passengers a year would losses from climate change. He
and was now fully funded, Mr use the BAC facilities, it would said causation was important
Murphy said. All schemes needed eclipse Melbourne as the nation’s to investigate. For example,
consistency, a ban on advertising second largest airport, and 40,000 many spray drift claims were
by personal injury lawyers, and people would work on the BAC actually pest infestations or poor
harmonisation with the social site, Dr Bowes predicted. management practices.
ICA reforms fail to define claim He advised underwriters to
Airport liability goes offshore educate insureds for early
Proposed reforms to the Insurance
notification of claims. Intervention
There is insufficient capacity in Contracts Act do not define
by professional agronomists could
the Australian liability market for “claim”, despite some submissions
reduce claims dramatically.
the Brisbane Airport Corporation calling for a definition, Samantha
(BAC). BAC company secretary Traves, Queensland University of Mr Best predicted an increase
Brad Bowes told the intensive Technology law lecturer, told the in exclusions, for example, wind
he had just returned from the intensive. cover was no longer available in
annual “beauty parade to liability north Queensland. Agribusiness
That meant the meaning of
underwriters in London”. losses post-Cyclone Larry were
“claim”, as opposed to “facts that
BAC needed more than $1 billion might give rise to a claim” under
in coverage and “we must go to s54A, was unresolved. Ms Traves Resources sector seeks alternatives
the London market to get it”. said whether an insured had
The insurance market has a
While BAC was not responsible notice of a claim, or only of facts
conservative view of the resources
for “a lot of the risky stuff, like giving rise to a claim, should be
sector, says Aon divisional
refuelling”, passenger security was construed independently of any
manager, corporate insurance
its responsibility. The potential for contractual definition of the terms.
services, Robert Evans. “The
slip and falls was heightened at
She suggested “claim” involved resources industry has not seen the
airports because passengers who
a legal proceeding and extended same rate reductions as the market
had been on long flights “don’t
to “a letter of demand that generally.”
always have the attentiveness of
identified an amount and
someone walking down the road”. A lack of insurance capacity meant
demanded payment under threat
the industry was looking
Dr Bowes said BAC’s risk of legal proceedings”. A letter
management program was saying a client may suffer loss as Continued page 8.
AILA-NZILA NEWS • PAGE 7
AILA Qld Insurance Law Intensive
From page 7. Alliances were non-adversarial with Optimise cover, says Aon
at non-insurance solutions, all parties sharing the wins and
Insurance buyers should optimise
including finite risk transfers, losses. Risks were shared and a no-
policy coverage now, while the
higher retentions and access to blame concept adopted for errors, market is competitive and rates
reinsurance markets. It was also mistakes, poor performance or soft, says Scott Willmot, Aon’s
considering employee benefits to negligence. national manager, sales & services.
get workers to remote areas. The “carve outs” were wilful Elements of cover that had been
The resources industry needed default and indemnities for third- withdrawn should be revisited. He
“analytical analysis to determine party claims. That allowed access told the intensive the continued
risk tolerance and retention to other insurance policies, for competition in 2006 and 2007
levels”. example, public liability and was caused by new capacity from
professional indemnity. existing insurers, new entrants and
Mr Evans acknowledged 2005-
The new alliance professional more underwriting agencies, which
06 had been “a difficult year” for
indemnity products allowed first- were predominantly backed by
mining underwriters globally. overseas capital.
Cyclone losses totalled $330 party cover for internal losses
million, including claims for mines incurred by an alliance participant, The claims environment was
in Western Australia’s Pilbara insured all participants against benign. The US hurricanes had no
region. third-party claims, and offered effect on the Australian market.
project-specific cover, with run- Private equity capital was investing
However, the industry was highly off cover available for a defect
regulated and understood that in the industry and insurers’ 24%
rectification period. return on equity was a record
good risk management was
essential. The products were residual, that level.
is, they operated only if no other Rate reductions differed according
Brokers had to emphasise the
policy responded. to whether business was new or
high levels of embedded risk
management required by mining Use experts with caution renewing. Some insureds had
operations when marketing risks received 50% reductions for the
Experts should be used with third consecutive year in financial
to insurers. Mr Evans told the
caution in litigation, says lines. Was there room for more
intensive the mining boom meant
Queensland barrister Richard movement? “Probably yes”, Mr
business interruption claims were
Douglas, SC. Willmot said, describing it as the
likely to be higher. The mining
correction of “a hard market that
industry had little spare capacity He told the intensive that lawyers
went too far”. All insurers were
to increase production if a loss “too often” ran for experts when
chasing SME business, so 50%
occurred and lead times for laypersons’ evidence would be reductions were not uncommon.
replacement equipment were likely acceptable. He said half the reports
to be longer. he saw were inadmissible, but Capacity was now available
that was the fault of lawyers not for hard-to-place risks, like
Mr Evans said the resources sector environmental risks, financial
wanted contract certainty, with experts.
planners and financial institutions.
policies being issued at or before Experts were required only as “a The Westpoint collapse had “made
placement. “The market has not source of relevant, probative facts, no difference” to professional
been good at this in the past.” outside common experience”. He indemnity for financial planners.
Alliance contracts’ response was not in favour of sole experts,
For professional indemnity
positive because there was an unconscious
overall, Mr Willmot predicted
risk of experts not “engaging
The insurance industry has continuing aggressive pricing,
the same rigour if they know no
responded to new alliance broader coverage, and a shift to an
one else may give contradictory
contracting, now common in emphasis on terms and conditions
evidence”. rather than just pricing.
construction projects, with three
insurers offering products with Briefing experts was important. Underwriting disciplines had been
coverage up to $20 million. Too many went “beyond their relaxed, he said. Historical claims
expertise bailiwick, because they data was not always required by
Minter Ellison partner Ian Briggs think they can”. They needed to
said alliance contracting had insurers. Brokers wanted the
use layman’s terms. “eroded” discipline to “re-emerge”.
developed because the industry
was “riddled with post-construction “I’m suspicious of experts speaking For directors & officers’ liability,
disputes” and the enormous in technical language,” Mr Douglas litigation funding would increase
demand for infrastructure meant said. Experts had to eschew the the risk of shareholder class
the industry needed a better way temptation to be judgemental, “or actions, but “do not expect a turn
to deliver projects. even subconsciously subjective”. in the market in 2007”.
AILA-NZILA NEWS • PAGE 8
Evidence Act heralds privilege changes?
by Emily Walton reports when defending a breach but substantially diluted through
Associate, Wynn Williams, Auckland of contract claim consequent to its extension to the receipt,
declinature. compilation and preparation of
Indemnity insurers have communications and information.
traditionally had limited The dominant purpose of a
recourse to litigation privilege document is a matter of fact, The act of compilation of
to protect initial loss assessment judged on the purpose of the information for the dominant
and investigation reports from person creating the document purpose will now cause privilege
production. and the intention of the person to attach to otherwise unprivileged
requesting it. But, in reality, documents, presumably including
Does “privilege for preparatory Guardian left insurers with little loss adjustment and investigation
material in proceedings”, enacted room to move. reports, which would have failed
at section 56 of the much the dominant purpose test at
anticipated, but not as yet in force When litigation is reasonably
contemplated is also a question creation.
Evidence Act 2006, herald a new
day for insurers? of fact. Vague apprehension of This is a significant deviation from
litigation will not suffice. Despite existing jurisprudence. Currently,
Litigation privilege protects from arson causing 30% of fire claims non-privileged documents do not,
production communications (oral worth more than $10,000, the without more, acquire privilege
or documentary) between a party court has declined to accept that simply because they are copied
or its legal advisers and third most assessors are employed for by a solicitor for purposes of an
parties, created for the dominant the sole purpose of determining action. When documents exist in
purpose of assisting in actual or whether a fire claim is genuine. circumstances that do not give rise
contemplated litigation. No exception has been made for to privilege, the mere fact they
It is the dominant purpose that fire claims. are handed to a solicitor for the
frequently precludes litigation Litigation can be said to be in purposes of litigation does not
privilege from attaching to loss contemplation once an insurer is create a privilege .
assessment and investigation advised that a policy claim should Now, conceivably every document
reports commissioned by be denied and in response engages compiled in a solicitor’s brief
indemnity insurers into policy solicitors and counsel. for the dominant purpose of
claims. Such reports may have preparing for proceedings will
many purposes, including: The practice of insurers engaging
solicitors to draft instructions to be protected. One doubts this
• to assist in deciding whether to loss adjusters or investigators does was the legislature’s intention. It
accept or decline a claim, not guarantee protection of the certainly contradicts “the public
• adjustment of the value of the resultant report. If challenged, interest” which is “best served by
claim, and/or courts will still objectively assess rigidly confining within narrow
whether litigation was reasonably limits the cases where material
• gathering evidence for use in relevant to litigation may lawfully
defending an insured’s litigated be withheld”.
claim for breach of contract Section 56 extends privilege to
arising out of a declinature. “communications and information There is authority in England for
made, received, compiled or privilege attaching to documents
The dominant purpose test where the selection of documents
prepared for the dominant
for multipurpose documents a solicitor has copied or assembled
purpose of preparing for a
was imposed by Guardian Royal betrays the trend of the advice he
proceeding or an apprehended
Exchange Assurance Ltd v Stuart is giving the client.
proceeding”. Specifically, privilege
 1 NZLR 596. Litigation
attaches to: Whether NZ’s judiciary will impose
privilege did not attach to the loss
assessor’s report on the fire giving (a) a communication between the a “trend of advice” or equivalent
rise to Mr Stuart’s claim under his party and any other person, local test to the acts of receipt,
house & contents policy because compilation and preparation or
(b) a communication between the
the dominant purpose of the any one of them alone remains to
party’s legal adviser and any
report was to provide Guardian be seen.
with a basis on which to decide Edwards & Ors v Lewis Unreported 30 June
whether or not to decline the (c) information compiled or
1986 HC Napier
claim. prepared by the party or its
Carlton Cranes Ltd v Consolidated Hotels Ltd
legal adviser, and
That is consistent with the primary  2 NZLR 555
obligation of an insurer to meet (d) information compiled or Harrison v Attorney General (1989) 4 PRNZ
the insured loss, and arguably prepared at the request of the 122.
also with the insurer’s duty of party, or its legal adviser, by Dinsdale v Commissioner of Inland Revenue
utmost good faith. But, for the any other person. (1997) 10 PRNZ
last 20 years, it has frequently For insurers, the Achilles heel of General Accident Fire and Life Assurance
compelled insurers to produce litigation privilege, the dominant Corporation v Elite Apparel  1 NZLR
initial investigation and assessment purpose test, has been retained 129 (CA).
AILA-NZILA NEWS • PAGE 9
Profile National board
Doug loves life in the top end contacts President: Stephen Knight
Doug Webb is AILA’s inaugural establishing AILA in the NT. Dobson, Mitchell & Allport
Northern Territory chairman The branch hosts three or four Phone: 03-6222-1111
and board member. seminars a year, capitalising on Fax: 03-6223-6633
opportunities when interstate Email: firstname.lastname@example.org
General manager of TIO Motor speakers are available. Secretary: David McKenna, Jarman
Accidents Compensation, Mr McKenna
Webb joined the AILA board Mr Webb enjoys life in Darwin - Phone: 08-9492-2222
after the NT branch was “it’s like a big country town, but Fax: 08-9492-2255
establish three years ago. He with capital city infrastructure Email: email@example.com
was already a regular at AILA and facilities”. Although the hot Treasurer: David Berry, Aon Risk Services
conferences, having flown to his weather can be stifling in the wet Phone: 08-8301-1169
first, in Melbourne in 1989, at season (November to April), and Fax: 08-8301-1100
the height of the pilots’ dispute. forced him to abandon a love Email firstname.lastname@example.org
He has also been a regular of golf. Immediate past president:
attendee at the Peter Backe-Hansen, Allianz
AILA Queensland Other sports Phone: 02-8258-5372
insurance law are still on Email: Peter.Backe-Hansen@allianz.com.au
intensive. The the agenda, COMMITTEE MEMBERS
2007 event was though. Mr Damon Bennett, GAB Robins Australia
his fifth. Webb is a Phone: 07-3121-6800
dedicated Fax: 07-3121-6811
After graduating in Collingwood Email: email@example.com
law from Monash AFL Club Kim Bradey, Dibbs Abbott Stillman
University in 1978, supporter, Phone: 03-8080-3522
Mr Webb worked spent a Fax: 03-8080-3866
as a loss adjuster long, but Email: firstname.lastname@example.org
for several years, enjoyable day John Fountain, Fountain & Bonig
including a 12- at the Darwin Phone: 08-8239-1114
month posting round of Fax: 08-8239-1077
to Darwin. Back the V8 Email: email@example.com
in Victoria, he SuperCars Doug Galbraith, Clayton Utz
worked in a and is Phone: 02-6279-4000
Ringwood legal relishing the Fax: 02-6279-4099
practice for three forthcoming Email: firstname.lastname@example.org
years and was then a partner in Darwin Cup Carnival. Michael Gill, DLA Phillips Fox
a country law firm. Phone: 02-9286-8419
He loves to travel, and that’s an Fax: 02-9283-4144
It was a chance call to a former Email: email@example.com
advantage of living in Darwin
work colleague in Darwin that
- “it’s four hours to anywhere”. Michael Raymond, Munich Reinsurance
saw him back in the top end in
Mr Webb and his family have Phone: 02-9272-8179
1987. His colleague had since
holidayed in Bali, Singapore Fax: 02-9272-8115
joined the TIO and told him the Email: firstname.lastname@example.org
and Hong Kong, and he’ll travel
state government-run insurer
almost anywhere to indulge Chris Rodd, CGU Insurance
needed an in-house counsel.
his passion for live music. For Phone: 03-9601-8036
Mr Webb got the job and had example, he saw Phantom of Fax: 03-9601-8366
that role until 1996, when the Opera in Singapore, Robbie Email: email@example.com
he was promoted to a senior Williams in Perth, the Eagles in Roger Sands, Talbot Olivier
management position with Melbourne, and John Farnham Phone: 08-9420-7100
the TIO-run motor accidents in Brisbane. Fax: 08-9420-7101
compensation scheme. Email: firstname.lastname@example.org
Mr Webb and his wife, Sandra, Robert Webster, Dobson Mitchell & Allport
In 2000, he moved to general have two daughters, Sarah, Phone: 03-6222-1111
insurance as assistant general 22, and Kristie, 25. They’re Fax: 03-6223-6633
manager, claims & legal, and proud grandparents to Kristie’s Email: email@example.com
in 2004 went back into Motor daughters, Tali, 4, and Bonnie, Doug Webb, Territory Insurance Office
Accidents Compensation as nine months. Phone: 08-8946-2257
general manager. Fax: 08-8946-2268
In fact, his family, and a cold Email: firstname.lastname@example.org
With a dedicated committee glass of sauvignon blanc at the WEBSITE ADMINISTRATOR
and membership that fluctuates end of a hard day in the office, Mike Quinlan
around 20 people, Mr Webb are the things Doug Webb will Phone: 0409-057-760
has been instrumental in never give up. Email: email@example.com
AILA-NZILA NEWS • PAGE 10
AILA Legal, Perth, WA. Mark Birkbeck, managing director of Finity
a workers’ compensation and Consulting. She takes over from
PEOPLE commercial law specialist, has been
appointed a partner at Downings
founding managing director Colin
Brigstock, who will spend more
Legal. time with clients.
Sam Mauriello, a paralegal and
business development manager Wesfarmers Insurance Divisionn Ace Asia Pacific has made the
has appointed Stephen McConnell following appointments. Stephen
with Adelaide law firms for the
as CFO. He will be based in Sydney Crouch is now CEO and country
past 17 years, has joined Insurserv manager for Australia and New
Australia as manager, SA/WA/NT, and report to Rob Scott, who takes
over from Bob Buckley when he Zealand. He was most recently CEO
based in Insurserv’s new Adelaide of Ace Hong Kong; John French
office. He has significant experience retires in July. Mr McConnell joins
Wesfarmers from Ace Insurance, is now CEO and country manager
in insurance recoveries with law of Ace Hong Kong. He was Ace
firms and an insurer. Managing where he had been CFO for
Australia and new Zealand since Australia’s general manager before
director Scott Hallewell said Mr taking over the helm in Singapore
Mauriello’s extensive background in November 2003.
in the Adelaide insurance industry
would be valuable in building Liberty International Underwriters
has appointed Suzanne Ross National Transport Insurance
business for the new Adelaide (NTI) has appointed Stephen
office. Insurserv assists insurers and as senior underwriter, specialty
Smith as SA/NT manager. Mr Smith
self insurers to recover claims owed casualty, in its Brisbane office.
previously had the same role with
by third parties efficiently and Ms Ross joined LIU in Melbourne Swann Insurance. NTI’s former
effectively. in 2005. SA/NT manager, Paul Craig, has
taken on national underwriting
Michelle Frosh Carter Newell Lawyers has responsibilities, based in the
(right) and appointed Andrew Persijn as a company’s Adelaide office.
Jane Thomas solicitor with its insurance team
have joined the in the firm’s Brisbane office. He Tony Thrift has joined Australis
professional previously worked for Brisbane Group Underwriting as broker
indemnity firm Richardson & Lyons Solicitors. liaison manager. Mr Thrift will
insurance team work with brokers to develop
at Downings Michelle Frosh Estelle Pearson has been appointed mutual business opportunities.
Sportscover first with Lloyd’s syndicate
Establishing a Lloyd’s syndicate is was December 2005 before he even been prohibitive,” he said.
not for the faint-hearted, but the met Lloyd’s to get the green light to “The strongest thing about Lloyd’s
rewards are there. proceed with an application. is its brand image. It has a prestige
Peter Nash, managing director of It was almost another year, August we don’t get as Sportscover alone.”
Sportscover Syndicate 3334, took 14, 2006, before the syndicate was Mr Nash said the franchise system
the plunge. Sportscover is the born. During that time, there were meant there was an obligation on
first syndicate writing business for 192 meetings, 5,000 pages of text syndicates to protect and defend the
amateur sports at Lloyd’s and the generated, and £15 million of capital brand.
first established by an Australian invested.
privately owned company. Mr Nash He said Lloyd’s had a long history
The syndicate was the first new one of changing to meet customer
is the first active Lloyd’s underwriter for 21/2 years, and the only one of
to live outside the United Kingdom. demands and being a first mover
22 applications to be successful in in new, big, unusual, complex
He told an AILA Qld meeting that time. risks. The market had £16.4 billion
that the cost was $1 million in Mr Nash said Sportscover, a in capital, the majority corporate
establishment costs and three people $50 million Australian company capital. “There are very few
fulltime for two years. It required writing sports insurance for 20 unlimited Names still in the system.”
“a healthy attitude”, as there was years, decided to become a Lloyd’s
much frustration, confusion and Since last August, Sportscover has
syndicate because of the access it increased premium income by
misunderstandings. offered to the worldwide stage in 101% and is predicting a 125%-
He began the process in January a short time. 130% increase by August 2007.
2005, hiring a senior Lloyd’s “Every business needs an The company currently writes
person with 23 years’ experience, international content. Lloyd’s is $30 million of premium income
researching “what we thought we licensed in 76 countries and has a in Australia a year, but plans to
needed”, preparing a business plan, good security rating. The cost of increase revenue to $400 million in
and selecting a managing agent. It achieving that alone would have five years.
AILA-NZILA NEWS • PAGE 11
August 13 - August 14 August 29
Australian Risk Summit 2007, Navigating through the maze SA branch breakfast seminar, Hilton International Hotel,
of risk challenges, Sydney Convention & Exhibition Centre. Adelaide. Go to www.aila.com.au.
Go to www.acevents.com.au/risk2007 August 29
August 20 - August 21 Geoff Masel Memorial Lecture Series, Canberra, noon to
D&O Liability Symposium, 2pm, venue TBA. Speaker Greg Rinehardt.
The Westin, Sydney, Professional Risks Pty Ltd, Ph Doug Galbraith, (02) 6279 4065.
ph (03) 5989 7582. August 30 - September 1
August 22 ANZIIF, 14th annual Sunshine Seminar: A World of
Geoff Masel Memorial Lecture Series, Sydney, 4.30pm- Change, Sheraton Noosa. Go to www.theinstitute.com.au.
6.30pm. Venue TBA. Speaker Prof Greg Rinehardt, Can Wednesday, September 12
courts ignore the reality of insurance in litigation? Ph
Geoff Masel Memorial Lecture Series, Melbourne, Venue
Penny Paterson, (02) 9975 7198.
TBA, 4.30pm-6.30pm. Speaker Greg Rinehardt.
August 23 Ph Brian McPhail (03) 9899 5382.
Geoff Masel Memorial Lecture Series, Brisbane. September 19 - September 21
The Polo Club, Naldham House, 1 Eagle Street, Brisbane,
AILA-NZILA annual conference, The ties that bind.
12.30pm-2.30pm. Speaker Greg Rinehardt.
Christchurch, New Zealand. Go to www.aila.com.au
Ph Kim Logan, (07) 3886 5861.
This newsletter is compiled by Kate Tilley Journalism Pty Ltd on behalf of the Australian
Insurance Law Association and the New Zealand Insurance Law Association. Copy deadlines for forthcoming issues are:
Editor: Kate Tilley Conference issue: Friday, September 28, 2007
Please forward contributions to KT Journalism: PO Box 165, Spring Hill, Qld, 4004; December 2007: Monday, November 5, 2007
phone (07) 3831-7500, fax (07) 3831-7541 or email firstname.lastname@example.org.
To contact AILA and NZILA AILA ABN 81 052 374713
Secretariat: Brian Moore
Web site: www.aila.com.au Chairman: Justin Meyer Ph: 08-9761-2363; Fax: 08-9761-4713;
Marsh email: email@example.com
President: Stephen Knight
Dobson Mitchell & Allport Ph: 03-9603-2208
Ph: 03-6222-1111; Fax: 03-6223-6633 Email: firstname.lastname@example.org
Secretary/Treasurer: Peter Chapman Chairman: Damon Bennett
Email: email@example.com GAB Robins
McClarens Young International
Secretary: David McKenna Ph: 07-3121-6800; Fax: 07-3121-6811
Ph: 03-9729-5590; Fax: 03-9720-4104; Email: firstname.lastname@example.org
Jarman McKenna Email:email@example.com
Ph: 08-9492-2222; Fax: 08-9492-2255 Secretary: Rebecca Stevens
Email: firstname.lastname@example.org Secretariat: Brian McPhail Carter Newell
McPhail & Partners Pty Ltd Ph: 07-3000-8347; Fax: 07-3000-8466
National Secretariat: Brian McPhail Ph: 03-9899-5382; Fax: 03-9890-6310
McPhail & Partners Pty Ltd Email: email@example.com
PO Box 93, Box Hill, Vic 3128 Secretariat: Kim Logan
DX 12815 Box Hill. Ph: 07-3886-5861; Fax: 07-3886-3362
Ph: 03-9899-5382; Fax: 03-9890-6310 Chairman: John Homburg Email: firstname.lastname@example.org
Email: email@example.com Fountain & Bonig
Ph: 08-8239-1114; Fax: 08-8239-1077
Email: firstname.lastname@example.org Chairman: Robert Webster
President: Christine Meechan Dobson Mitchell & Allport
Bell Gully Secretary: Julie Kinnear Ph: 03-6222-1111; Fax: 03-6223-6633
Ph: +64-9-916-8800; Fax: +64-9-916-8801 DLA Phillips Fox Email: email@example.com
Email: firstname.lastname@example.org Ph: 08-8124-1812; Fax: 08-8231-0014 Treasurer: Bill Callaway
Email: email@example.com RACT Insurance Pty Ltd
Secretariat: Margaret Cloy Ph: 03-6232-6382; Fax: 03-6232-6433
Chairman: Michael Raymond
PO Box 617, Port Adelaide SA 5015; Email: firstname.lastname@example.org
Ph: 0439-817-330; Fax: 08-8341-0948;
Ph: 02-9272-8000; Fax: 02-9272-8115 NORTHERN TERRITORY
Chairman: Doug Webb
Secretary: Lisa Sutorowski Territory Insurance Office
Littlewoods Services Pty Ltd Chairman: Felicity Davis Ph: 08-8946-2257; Fax: 08-8946-2268
Ph: 02-9274-3063; Fax: 02-9274-3033 Francis Burt Email: email@example.com
Email: firstname.lastname@example.org Ph: 08-9220-0544; Fax: 9325-2041
Secretariat: Penny Paterson Email: email@example.com
PO Box 1241, Dee Why, NSW 2099 Secretary: Craig Hollett Chairman: Doug Galbraith
DX 9147 Dee Why DLA Phillips Fox Clayton Utz
Ph: 02-9975-7198; Fax: 02-9975-2998 Ph: 08-6467-6027; Fax: 08-6467-6001 Ph: 02-6279-4005
Email: firstname.lastname@example.org Email: email@example.com Email: firstname.lastname@example.org
AILA-NZILA NEWS • PAGE 12