Tag archives: Australia

Liability insurance exclusions – Professional Advice or Service Exclusion (Australia)

By Donald Dinnie on March 27, 2023 Posted in Insurance

In this case, class action proceedings were brought against the insured claiming damages for property loss arising from the release of, or failure to release, water from two dams. The liability of the insured arose out of its agreement to provide flood management services to the dam operator. The insured had been held vicariously liable … Continue reading

Directors & Officers insurance – Exclusion for director gaining personal advantage (AUS)

By Patrick Bracher (ZA) on March 24, 2023 Posted in Insurance, Uncategorized

The Federal Court of Australia found in March 2023 that a claim under a Directors & Officers Policy was excluded because the director had gained personal advantage from his wrongful act to which he was not legally entitled when he concealed information to avoid cancellation of a contract held with another company owned and controlled … Continue reading

When is a sub-subcontractor an insured (AUS)

By Patrick Bracher (ZA) on December 1, 2022 Posted in Insurance

An Australian supreme court was faced with the question whether a sub-subcontractor was a named insured or agent of the named insured under a general liability policy relating to demolition work on a construction site where a fire attributed to the conduct of the sub-subcontractor caused damage. The court held that on the policy wording … Continue reading

What is ‘replacement’ of a statute? (Aus)

By Patrick Bracher (ZA) on October 11, 2022 Posted in Insurance

The interpretation clause in a policy of insurance included a provision that “references to a statute law also includes all its amendments or replacements”. The Australian Quarantine Act had been replaced by the Bio Security Act, 2015 before the policy came into force but was held to be a replacement statute. The court held that … Continue reading

Liability excluded for motor vehicle used as tool of trade (Aus)

By Patrick Bracher (ZA) on September 26, 2022 Posted in Insurance

An Australian Supreme Court dismissed a claim for a contribution by one insurer against another because the earthmoving plant loader that was involved in the accident was being operated at the time as a mechanical tool of trade. A tool of trade was defined to mean “the operation of your motor vehicle whilst engaged in … Continue reading

What circumstances must be disclosed by a director negotiating a contract? (Aus)

By Patrick Bracher (ZA) on September 16, 2022 Posted in Insurance

The insured company represented by its sole director and shareholder agreed to construct a residential aged care building on the property. The company failed to disclose at a material time that the company was in severe financial distress and unable to meet its obligations including tax obligations. The Australian Federal Court held that the failure … Continue reading

What are ‘circumstances’ known to a director under a D&O Policy (Aus)

By Patrick Bracher (ZA) on September 14, 2022 Posted in Insurance

Where a Directors and Officers Policy provided that the insurer was not liable in connection with any claim based on “any circumstance which was known about by any of the Directors or Officers or Company prior to the Period of Insurance”, it was held that the word “circumstance” meant a circumstance which was known by … Continue reading

Keeping a company’s contract alive creates a ‘personal advantage’ for a director under D&O Policy exclusion (Aus)

By Patrick Bracher (ZA) on September 12, 2022 Posted in Insurance

An Australian federal court held that where a director failed to disclose the financial distress of his company to the prejudice of the other contracting party under a constructions contract, the director “gained personal profit or advantage” for the purposes of an exclusion of the Directors and Officers Policy and no claim was payable by … Continue reading

Email to unattended mailbox is a ‘claim made’ under insurance policy (Aus)

By Patrick Bracher (ZA) on September 9, 2022 Posted in Insurance

An Australian federal court held that an email intimating a claim against the insured under a Directors and Officers Liability Policy to a mailbox that was not attended to was nonetheless “received” by the insured for the purposes of the policy. The claims made policy defined a ‘Claim’ as a “written notice received by a … Continue reading

Prescription of D & O claims-made insurance claims (Australia)

By Donald Dinnie on August 12, 2022 Posted in Insurance

In this judgment, the relevant insurers relied on a limitation defence against the insured’s claims. All the parties agreed that the claim was in contract and had a limitation period of 6 years under the relevant legislation. The question was the accrual date of the insured’s cause of action. The court confirmed that the date … Continue reading

Interpreting insurance policies and the quality of the drafting (Australian judgment)

By Donald Dinnie on July 13, 2022 Posted in Insurance

The quality of the drafting of a policy may be taken into account when construing its terms: “The policy should be construed as a whole … It should not be approached by isolating particular fragments or disregarding its overall character … This also requires consideration of the style, layout, language and structure of the instrument. … Continue reading

Double insurance (Australia)

By Donald Dinnie on June 30, 2022 Posted in Insurance

In this April 2022 judgement, the court reviewed and considered the doctrine of double insurance in the context of a motor vehicle accident claim where the third party insurer settled the claim and then sought a contribution from the insurer of the employer of the driver. And the effect in that context on double insurance of … Continue reading

Trade credit insurance and Sharia-compliant finance (Australia)

By Donald Dinnie on June 29, 2022 Posted in Uncategorized

This judgement dealt with a trade credit insurance policy issued by the insurer. Trade credit insurance is a business insurance product which indemnifies a seller against losses from non-payment of a commercial trade debt. The insurer usually pays an agreed percentage of an invoice or a receivable that remains unpaid because of protracted default, insolvency … Continue reading

Broker’s liability to clients (Australia)

By Donald Dinnie and Keaoleboga Molefe on June 28, 2022 Posted in Insurance

This is an Australian case which concerns legal duties that a broker owes to its client (the insured) and the burden of proof that lies with the insured in showing whether brokers breached their legal duty. The broker provided the client with insurance brokerage services for over 30 years. The broker had obtained all-inclusive building … Continue reading

Head-on collision at speed on the wrong side of the road not held a deliberate act – proof by inference (Aus)

By Patrick Bracher (ZA) on May 25, 2022 Posted in Insurance

Head-on collision at speed on the wrong side of the road not held a deliberate act – proof by inference (Aus) The evidence was that a motor cyclist drove his motor cycle at a high speed of about 90 to 100kph on the wrong side of the road in an urban area straight into the … Continue reading

Entitlement to indemnity and “Interests of Other Parties” clause (Australia)

By Donald Dinnie on May 17, 2022 Posted in Insurance

In this judgment the appeal court had to consider whether the claimant who owned goods damaged by fire at the insured’s warehouse premises was entitled to an indemnity under the relevant policy of insurance. The lower court held that on a proper construction of the “interests of other parties” clause in the policy as interpreted … Continue reading

Cover for money as defined did not include bank deposits (Aus)

By Patrick Bracher (ZA) on April 14, 2022 Posted in Insurance

An Australian court found that the definition of insured property in an all-risks policy covering money losses did not include a loss suffered by the insured operator of automatic teller machines did not cover losses in its bank account. The claimant blamed the defendant security company for the losses and sought join their Lloyd’s insurer … Continue reading

Insurance and reasonable precautions clauses (Australia)

By Donald Dinnie on April 7, 2022 Posted in Insurance

In this recent Australian judgment dealing with broker liability, in which the broker ultimately conceded a breach of a duty of care of the insured to draw to their client’s attention a policy exclusion relevant to the insured’s pool for which the claim was made when the empty pool lifted, the court held that despite … Continue reading

Householders liability insurance exclusion for anyone who usually lives at the insured address (Australia)

By Donald Dinnie on November 9, 2021 Posted in Insurance

This judgment Re Murray (deceased) Crummer v AAI Limited ABN 2020 QSC 155 dealt with the meaning of a householder’s liability policy exclusion for liability for death or injury of anyone who usually lives at the insured address. The court said that the phrase “anyone who usually lives at the insured address” appeared to be a … Continue reading

Interpretation: “subsequent amendment” to a statute does not refer to a replacement statute (Aus)

By Patrick Bracher (ZA) on July 30, 2021 Posted in Interpretation

In June 2021 the High Court of Australia held that a clause in a business interruption policy that excluded diseases that were “declared to be quarantinable diseases under the Quarantine Act, 1908 and subsequent amendments” did not include diseases quarantinable under the Biosecurity Act, 2015 which had repealed and replaced the 1908 Act. The insurers … Continue reading