Annual Insurance Law Review Casebook 2013 INTRODUCTION Out on the patio we’d sit, And the humidity we’d breathe, We’d watch the lightning crack over canefields, Laugh and think that this is Australia. Sounds of Then, This is Australia, Ganggajang, 1985 Welcome to the Barry.Nilsson. Annual Insurance Law Causation loomed large in the medical negligence case insurers as it takes a broad view of when defendants will Review Casebook for 2013. of Wallace v Kam [2013] HCA 19 where allegations be “concurrent wrongdoers” who have caused the same were made that a medical practitioner failed to warn a loss to a plaintiff. This is the 50th year for Barry.Nilsson. We are pleased to patient of 2 distinct material risks inherent in a surgical celebrate the continuing of our longstanding relationship procedure and only 1 (less obvious) risk eventuated. Apart from the long list of cases in our casebook with the insurance industry. Professional negligence claims against solicitors are also the industry of course has taken huge strides with prevalent with the Hancock family under the microscope amendments to the Insurance Contracts Act. After 10 The casebook makes reference to all the major insurance in The Hancock Family Memorial Foundation Limited v years in the making notices will be able to be sent under related judgements throughout Australia in the 2013 Fieldhouse (No 5) [2013] WASC 121, a case relating to the Act electronically, ASIC will be able to take action financial year. It traverses a collection of interesting, the professional negligence of a solicitor in regards to a against insurers for breach of the duty of utmost good challenging and educational cases. Close to home the conflict of interest and recovery from an excess insurer faith by making it a breach of the Act, the duty of utmost liability of state and local authorities came into focus pursuant to section 51 of the Insurance Contracts Act. good faith will extend to third party beneficiaries and in Kelly v State of Queensland [2013] QSC 106. The ASIC will have the power to vary, suspend or cancel Queensland Supreme Court found for the catastrophically Section 54 of the Insurance Contracts Act was again an insurer’s license for breach of the duty of utmost injured plaintiff following him running down a sand dune in focus in Matthew Maxwell v Highway Hauliers Pty good faith. There are also changes in relation to the at Fraser Island. Arguments relating to the obvious risk Ltd [2013] WASCA 115. That court decision sent a clear duty of disclosure when eligible contracts of insurance and dangerous recreational activity were canvassed by message that section 54 ought to be given a wide ambit are entered into and renewed, the rights of third party the court. Given the issues at stake, it is not surprising in favour of an insured, particularly in circumstances beneficiaries are extended and there are new rules that the matter will go on appeal. where the insured’s breach of the policy is not causative governing the distribution of funds recovered by way of of the relevant loss. Difficulty remains in reconciling that subrogation. Occupiers liability and sporting and recreational type court’s decision with the decision of the Queensland claims have also featured prominently. Whether there Court of Appeal in Johnson v Triple C Furniture & I hope you enjoy our casebook for 2013. was a duty imposed on a landlord to make alterations Electrical Pty Ltd [2010] QCA 282. to a stairway was considered in Sheehy v Hobbs [2012] QSC 333 and in New South Wales the Court of Appeal Pleasingly the High Court, in a very important decision, considered the liability of a ski operator for injuries delivered its first judgment on proportionate liability. The Peter Murdoch, Partner sustained by an inexperienced student in Perisher Blue judgment in Hunt & Hunt v Mitchell Morgan Nominees P: +61 7 3231 6369 Pty Ltd v Harris [2013] NSWCA 38. Pty Ltd & Ors [2013] HCA 10 was generally good news for [email protected] Barry.Nilsson. Lawyers 2013 Casebook | 02 ANNUAL INSURANCE LAW REVIEW COMMITTEE PARTNERS Peter Murdoch Partner Rhett Kennedy Peter Murdoch P: +61 7 3231 6369 P: +61 7 3231 6327 P: +61 7 3231 6369 [email protected] [email protected] [email protected] Sue Myers Senior Associate John Sharman Robert Samut P: +61 7 3231 6366 P: +61 7 3231 6351 P: +61 7 3231 6326 [email protected] [email protected] [email protected] Stephanie Cook Senior Associate Richard Leahy Fiona Sennett P: +61 7 3231 6161 P: +61 7 3231 6318 P: +61 7 3231 6320 [email protected] [email protected] [email protected] Lisa Hulcombe Senior Associate Melanie Quixley P: +61 7 3231 6354 P: +61 7 3231 6308 [email protected] [email protected] Kim Nicolaidis Precedent & Knowledge Manager P: +61 7 3231 6341 [email protected] Barry.Nilsson. Lawyers 2013 Casebook | 03 ADDITIONAL INFORMATION We understand the complexity and high-stakes nature of insurance and health matters... Barry.Nilsson. Lawyers is a Brisbane-based law firm and actions with this in mind. With our leading with a national reputation for our leadership in the practitioners and a strategy focused on you, we deliver areas of insurance & health law, property & commercial a connected advantage. law, and family law. Our team of 50 insurance and health specialists can To find out more information about We specialise in selected areas of law, continually confidently claim our place as a market leader. Many Barry.Nilsson. Lawyers please use the refining our expertise in ever-changing legal years of experience have enabled our team, ably led links below. landscapes. While maintaining our skills at the highest by experienced partners, to develop a level of industry level is essential to our ongoing success as a leading innovation and strategic leadership on all aspects of INSURANCE & HEALTH TEAM Australian firm, we know it takes more to deliver the insurance and health law that sets us apart from other best outcome for you. firms. PUBLICATIONS The real advantage we deliver is based on our ability We understand the complexity and high-stakes nature AREAS OF EXPERTISE to focus on your unique circumstances and objectives. of insurance and health matters and recognise that We deliver the best outcome through a thorough responsibility to act in your best interest is one we take understanding of your needs, and tailor our advice seriously. Barry.Nilsson. Lawyers 2013 Casebook | 04 CONTENTS PUBLIC LIABILITY PRODUCT LIABILITY Cases considering the liability of State and local authorities, Cases considering the liability of manufacturers, suppliers and vendors occupiers and the owners and operators of licensed premises for loss associated with the use of a defective product WORKERS’ COMPENSATION HEALTH LAW Cases considering the liability of employers for injuries to Cases considering the principles of liability and procedural matters employees in the workplace arising in the context of medical professionals and institutions PROFESSIONAL NEGLIGENCE Cases concerning alleged breaches of duty or contractual INSURANCE ISSUES Cases considering insurance policy responses and the application of obligations in the performance of professional work or provision insurance legislation of professional services MOTOR VEHICLES PRIVILEGE Cases considering liability, quantum and legislation issues Cases considering privilege, including legal professional privilege and involving motor vehicles privilege over loss adjusters’ reports DAMAGES PROCEDURE Cases considering damages awarded for injury claims, economic Cases dealing with procedural matters such as the interpretation and losses and property damage application of legislation, costs and offers of settlement MISCELLANEOUS Cases concerning specific and/or discrete issues of relevance in LIST OF ABBREVIATIONS an insurance context Barry.Nilsson. Lawyers 2013 Casebook | 05 LIST OF ABBREVIATIONS ACA Accident Compensation Act 1985 (VIC) MAIA Motor Accident Insurance Act 1994 (QLD) CA Corporations Act 2001 (CTH) MACA Motor Accident Compensation Act 1999 (NSW) CCA Competition and Consumer Act 2010 (CTH) OHS Occupational Health and Safety Act 2001 (NSW) CLA (NSW) Civil Liability Act 2002 (NSW) PIPA Personal Injuries Proceedings Act 2002 (QLD) CLA (QLD) Civil Liability Act 2003 (QLD) TPA Trade Practices Act 1974 (CTH) now the Competition and Consumer Act 2010 (CTH) CLA (SA) Civil Liability Act 1936 (SA) WCA Workers’ Compensation Act 1987 (NSW) CLA (TA) Civil Liability Act 2002 (TA) WCA (ACT) Workers’ Compensation Act 1951 (ACT) CLA (WA) Civil Liability Act 2002 (WA) WHSA (QLD) Workplace Health and Safety Act (1995) (QLD) CLWA Civil Law Wrongs Act 2002 (ACT) WCRA Workers’ Compensation and Rehabilitation Act 2003 (QLD) ICA Insurance Contracts Act 1984 (CTH) UCPR (QLD) Uniform Civil Procedure Rules 1999 (QLD) LAA Limitation of Actions Act 1974 (QLD) LR (MP) Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Barry.Nilsson. Lawyers 2013 Casebook | 06 PUBLIC LIABILITY PUBLIC LIABILITY Contents State and Local Authorities 13 Curtis v Harden Shire Council [2012] NSWSC 757 The plaintiff brought a claim against the defendant after his partner died in a single vehicle accident on a road which was undergoing resurfacing roadworks. 14 Upper Lachlan Shire Council v Rodgers [2012] NSWCA 259 Council liable for personal injuries suffered by the respondent when he fell in a darkened car park owned and operated by the Council. 15 State of Queensland v Nudd [2012] QCA 281 Consideration of the adequacy of an inspection system for spillages in a state prison. 16 Bathurst Regional Council atf The Bathurst City Council Crown Reserves Reserve Trust v Thompson [2012] NSWCA 340 Liability of a local authority acting as trustee for a slip and fall on stairs within a park.