What is Indemnity Value under Industrial Special Risk Policies and when is Interest Payable by an Insurer in relation to Delayed Payment of Claims?
We recently received instructions from an insured that had had a commercial property destroyed as a result of the Victorian Bushfires in February 2009. The insured held an Industrial Special Risk (ISR) Mark IV Policy in relation to the business that he operated. The premises at which the insured operated his business were destroyed as a result of the fire and a claim was made under the policy for the destruction of the premises as well as certain consequential losses sustained. The insurer admitted liability under the policy shortly after the claim was lodged however, there was dispute in relation to the true measure of indemnity value.
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Geoff Pike
Partner, Sydney
The High Court reviews principals’ liability to contractors and subcontractors
Leighton Contractors Pty Ltd v Fox Calliden Insurance Limited v Fox [2009] HCA 35
On 2 September 2009 the High Court of Australia handed down a decision in relation to a principal and a contractor’s liability to independent contractors and specifically whether these parties owe a duty to provide training in safe working methods to independent contractors working on a construction site.
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Kerri Thomas
Partner, Melbourne
Centrelink Payback
When acting for Insurers and Compensation authorities, a regular issue which arises in settlement negotiations is the amount of “Centrelink payback” which may arise if the claim resolves. Having a general understanding of the operation of the compensation preclusion provisions can assist in reaching an effective settlement.
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Ben Dube
Partner, Brisbane
Avon Products Pty Limited v Magrit Falls [2009] ACSTSC 141
The ACT Supreme Court has once again examined the issue of State/Territory of connection of a worker in the case of Avon Products Pty Limited v Magrit Falls [2009] ACTSC 141.
By way of background, all Australian States and Territories now have a similar test to determine the State/Territory from which an injured worker derives compensation benefits. A worker derives benefits from their State/Territory of connection. In general terms, a worker’s employment is connected with the State/Territory:
(a) where the worker usually works; or
(b) if no ‘single’ State/Territory is identified by (a), the State/Territory where the worker is usually based; or
(c) if no ‘single’ State/Territory is identified by (a) or (b), the State/Territory where the employer’s principal place of business in Australia is located.
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Matthew Needham
Partner, Canberra
Davis and Another v CGU Insurance Limited and Another 10 SASR 422
In 2002, Ms Davis and her husband purchased a property with an adjoining jetty that provided access to a lake. The jetty had an irrigation pump located on it. When they purchased the property the new owners assumed that the jetty and the pump belonged to them. In fact, the jetty and the pump were on located on Crown land and the former owner of the property had a licence over it. The licence was not transferred with the sale of the property.
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Michael Dwyer
Partner, Adelaide
Medicare Australia & Victorian Worker’s Compensation
Medicare Australia must be notified with respect to any compensation paid to a worker in relation to a judgment or settlement in excess of $5,000 as required by the Health and Other Services (Compensation) Act 1995 (HOSCA).
Compensation includes damages, weekly payments, medical and like expenses, lump sum payments and costs as paid in accordance with the Accident Compensation Act 1985 (the Act).
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James Johnson
Partner, Melbourne
Mobbs v Kain [2009] NSWCA 301
Speed Limit to be regarded as the speed at which a driver is entitled to drive unless special circumstances demand a slower speed
The New South Wales Court of Appeal has found the driver of a car travelling at the maximum legal speed limit not liable for injuries suffered by a 10 year old pedestrian who ran into a motor vehicle’s side from in front of a school bus.
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Jann Gardner
Partner, Newcastle
Issues to be Considered by Insurers when Pursuing Third Party Recovery Claims
The purpose of this paper is to discuss the issues which an insurer and insured should consider prior to commencing a joint recovery action against a third party.
As a general rule, the insured and insurer would be prevented from bringing separate recovery proceedings against the same third party. As such prior to commencing the recovery it is advisable for the insured and the insurer to discuss how the litigation is to be funded, who controls the litigation, how the recovery proceeds are to be distributed and how any disputes concerning the handling of the recovery action are to be resolved.
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Jonathan Wyatt
Partner, Perth
