Category Archives: Insurance Law

March v Stramare (E & M H) Pty Ltd [1991] HCA 12

ON THIS DAY in 1991, the High Court of Australia delivered March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506; (1991) 9 BCL 215 (24 April 1991).

Negligence – Causation – Duty of care – Injury reasonably foreseeable – Successive negligent acts by different persons – Whether first negligent actor exonerated by intervening negligent act – Apportionment of liability – Wrongs Act 1936 (S.A.), s. 27a(3).

The “but for” test was considered to be not a definitive test of causation in negligence.  Causation is a question of fact to be determined with reference to common sense and experience.

http://www.austlii.edu.au/au/cases/cth/HCA/1991/12.html

The “but for” test has since been revived by the operation of the Civil Liability Acts: see for instance Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 (10 November 2009).

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Tabet v Gett [2010] HCA 12 | 21 April 2010

ON 21 APRIL 2010, the High Court of Australia delivered Tabet v Gett [2010] HCA 12 (21 April 2010).

“NEGLIGENCE – Medical negligence – Damage – Loss of chance – Appellant suffered irreversible brain damage – Respondent’s delay in providing proper treatment breached duty of care owed to appellant – Where not established on balance of probabilities that breach caused any part of brain damage – Where breach at most caused loss of less than 50% chance of better outcome – Whether law of tort recognises or should recognise loss of chance of better outcome as damage giving rise to liability in negligence – Relevance of policy considerations concerning extension of liability in medical negligence cases.

NEGLIGENCE – Medical negligence – Damage – Loss of chance – Trial judge assessed as 40% the lost chance of better outcome – Court of Appeal found evidence supported no more than 15% chance of better outcome – Whether evidence sufficient to establish loss of chance of better outcome – Whether inference could properly be drawn from evidence as to loss of chance.

WORDS AND PHRASES – “balance of probabilities”, “damage”, “gist of the action”, “loss of a chance of a better outcome”, “standard of proof”.”

http://www.austlii.edu.au/au/cases/cth/HCA/2010/12.html

The law of negligence does not allow for damages to be awarded when the breach of duty of care causes less than a 50% chance of a better outcome.

http://www.austlii.edu.au/au/cases/cth/HCA/2010/12.html

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Miller v Miller [2011] HCA 9 | 7 April 2011

ON THIS DAY in 2011, the High Court of Australia delivered Miller v Miller [2011] HCA 9 (7 April 2011).

A joint illegal enterprise (eg joyride) negates a duty of care (driver to passenger) thereby creating a defence of illegality on the part of the driver/insurer: see Gala v Preston [1991] HCA 18. However, in Miller v Miller the High Court held that the plaintiff (injured passenger) was owed a duty of care because she withdrew from the enterprise by asking to be let out of the car and there were no reasonable steps available to her to prevent the continuation of the offence.

http://www.austlii.edu.au/au/cases/cth/HCA/2011/9.html

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Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1998] HCA 44 | 8 September 1988

ON 8 SEPTEMBER 1988, the High Court of Australia delivered Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107 (8 September 1988).

The proprietor of a building site (Blue Circle Cement) took out an insurance policy with Trident General Insurance which promised to indemnify the assured who it defined as Blue Circle Cement but also “all its subsidiary, associated and related Companies, all Contractors and Sub-Contractors and/or Suppliers”.

A contractor (McNeice) who incurred a legal liability (a judgment in favour of an injured worker) was held to be covered although not a party to the policy.

A non-party beneficiary under an insurance policy has a right at common law for benefits promised under the policy. The decision creates an exception to the privity of contract rule.

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National Disability Insurance Act 2013 (Cth)

ON THIS DAY in 2013, the National Disability Insurance Act 2013 (Cth) received assent.

http://www.austlii.edu.au/au/legis/cth/consol_act/ndisa2013341

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Miller v Miller [2011] HCA 9

ON 7 APRIL 2011, the High Court of Australia delivered Miller v Miller [2011] HCA 9 (7 April 2011).

A joint illegal enterprise (eg joyride) negates a duty of care (driver to passenger) thereby creating a defence of illegality on the part of the driver/insurer: see Gala v Preston [1991] HCA 18. However, in Miller v Miller the High Court held that the plaintiff (injured passenger) was owed a duty of care because she withdrew from the enterprise by asking to be let out of the car and there were no reasonable steps available to her to prevent the continuation of the offence.

http://www.austlii.edu.au/au/cases/cth/HCA/2011/9.html

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Sydney, Australia

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Tabet v Gett [2010] HCA 12

ON 21 APRIL 2010, the High Court of Australia delivered Tabet v Gett [2010] HCA 12 (21 April 2010).

“NEGLIGENCE – Medical negligence – Damage – Loss of chance – Appellant suffered irreversible brain damage – Respondent’s delay in providing proper treatment breached duty of care owed to appellant – Where not established on balance of probabilities that breach caused any part of brain damage – Where breach at most caused loss of less than 50% chance of better outcome – Whether law of tort recognises or should recognise loss of chance of better outcome as damage giving rise to liability in negligence – Relevance of policy considerations concerning extension of liability in medical negligence cases.

NEGLIGENCE – Medical negligence – Damage – Loss of chance – Trial judge assessed as 40% the lost chance of better outcome – Court of Appeal found evidence supported no more than 15% chance of better outcome – Whether evidence sufficient to establish loss of chance of better outcome – Whether inference could properly be drawn from evidence as to loss of chance.

WORDS AND PHRASES – “balance of probabilities”, “damage”, “gist of the action”, “loss of a chance of a better outcome”, “standard of proof”.”

http://www.austlii.edu.au/au/cases/cth/HCA/2010/12.html

The law of negligence does not allow for damages to be awarded when the breach of duty of care causes less than a 50% chance of a better outcome.

http://www.austlii.edu.au/au/cases/cth/HCA/2010/12.html

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Sydney, Australia

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Wallaby Grip Ltd v QBE Insurance (Australia) Ltd [2010] HCA 9

ON THIS DAY in 2010, the High Court of Australia delivered Wallaby Grip Ltd v QBE Insurance (Australia) Ltd [2010] HCA 9.  A workers compensation insurer failed to discharge its onus to prove the limit of its liability under a contract of indemnity.  Absence of such evidence resulted in the indemnity being deemed unlimited.

http://www.austlii.edu.au/au/cases/cth/HCA/2010/9.html

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Sydney, Australia

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QBE Insurance (Australia) Ltd v Smith [2005] NSWCA 130

ON 26 APRIL 2005, the NSW Court of Appeal delivered QBE Insurance (Australia) Ltd v Smith by his next friend Avard & Anor [2005] NSWCA 130 (26 April 2005).

The plaintiff was a nine year old boy who had been travelling as a passenger in a truck driven by his father.  They had been crabbing on a boat borrowed from a friend and were towing the boat back to it’s owner.  The plaintiff’s father stopped the truck across the road from the boat owner’s premises and directed the plaintiff to cross the road and open the gate. The plaintiff was injured when he was struck by another vehicle whilst crossing the road.

The father was held to be at fault in pausing and arranging for the gate to be opened and this was compensable under the Motor Accidents Compensation Act 1999 as it occurred in the use or operation of a motor vehicle.

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Sydney, Australia

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Civil Liability Act 2002 (NSW)

ON THIS DAY IN 2002, some parts of the Civil LIability Act 2002 (NSW) are taken to have commenced.

http://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/