HWL Ebsworth Insurance Review

18 December 2017

Welcome to the latest edition of the HWL Ebsworth Insurance Review.

We are delighted to bring you content addressing a range of current and emerging insurance issues, trends and cases from across our offices nationally, across various lines of business.

We trust you will find this edition of our Insurance Review helpful and informative. Should you wish to discuss any of these articles in any more detail, please contact any of our partners.

Regulatory spring clean

We review some of the regulatory spring cleaning initiatives: the ASIC Enforcement Review – banning powers and increased penalties; the Bank Executive Accountability Regime – the BEAR draft legislation; the introduction of the Australian Financial Complaints Authority – AFCA  – to replace FOS and the CIO; and the draft whistleblower legislation.

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Safe harbour for directors

We review the new safe harbour protection for company directors, together with the changes to the effect of ‘ipso facto’ clauses in contracts.

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Property damage due to a cyber event – is any cover available?

Whether or not property damage caused by a cyber event is covered by insurance is a question that is attracting increasing focus within the industry. In this article we review some of the current issues arising for insurers and insureds alike in this context.

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Faulty design exclusion sinks claim for policy indemnity

The recent Federal Court decision in Sheehan v Lloyds Names Munich Re Syndicate Ltd [2017] FCA 1340 illustrates the importance of obtaining clear evidence as to the cause of damage which is the subject of a claim under a policy and also acts as a reminder of the high standard of proof required to satisfy a court that an insured has “courted the risk”.

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Hospital’s liability for failure to detain

We consider a recent decision of the ACT Supreme Court, where a hospital was liable for a patient’s self-inflicted injuries due to its failure to adequately observe and detain the patient.

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Occupiers’ liability at shopping centres

We set out the requirements for occupiers in discharging the delegable duty of care to keep retail commercial premises safe, in light of the recent decision of the Full Court of the South Australian Supreme Court in Stringer v Westfield.

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NSW Court of Appeal grants principal certifying authorities (and their insurers) a reprieve

We review the recent NSWCA decision which held that a principal certifying authority did not owe a duty of care to avoid pure economic loss to subsequent purchasers of a property when issuing an occupation certificate. Not only a positive result for this class of professionals, but a useful refresher on the principles the court will consider when determining claims for pure economic loss.

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Discrimination in insurance policies

We consider the recent increase in interest in the use of blanket exclusions for mental illness and whether this amounts to unlawful discrimination and provide some practical tips on the defences available.

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