The NSW Government has recently proposed the State Insurance and Care Legislation Amendment Bill 2022.

The Bill proposes to extend certain regulatory, investigative and enforcement powers of the State Insurance Regulatory Authority to oversee and control iCare, self‑insurers and claims agents appointed pursuant to the workers compensation legislation.

If passed, the Bill will heighten the need for iCare, self-insurers, and claims agents to ensure compliance with the regulatory licensing requirements, and to ensure that where a breach occurs, steps are taken to:

• rectify the breach;
• give an appropriate undertaking; and to
• ensure that no further breaches occur.

The proposed amendments were made in line with the McDougall review recommendations with the goal of improving outcomes for all stakeholders

On 24 February 2022 the Supreme Court issued a decision in the matter of Jarvis v Allianz Insurance Ltd [2022] NSWSC 161.

This matter involved an Application for Judicial Review of the Medical Review Panel’s determination that the psychiatric injuries sustained by the Plaintiff did not give rise to a greater than 10% Whole Person Impairment.

Insurance Partner Stephanie Davis takes a look at the decision in this matter.

On 7 March 2022 the Court of Appeal issued a decision in the matter of Insurance Australia Ltd v Marsh [2022] NSWCA 31.

This matter involved an Appeal to a successful Application for Judicial Review.

Insurance Partner Stephanie Davis takes a look at the decision in this matter.

Congratulations to Associate Funda Karabacak, who has been listed in Australasian Lawyer's Rising Stars 2022 list!  

Presented by Partner and National Insurance Group Leader John Van de Poll on Wednesday 23 February 2022, this webinar examined a range of significant cases from 2021.

Discussion topics ncluded:

• Credit Hire
  Arsalan v Rixon [2021] HCA 4
   
• COVID-19 Business Interruption Test Cases
  Swiss Re International Se v LCA Marrickville Pty Limited (Second COVID-19 insurance test cases) [2021] FCA 1206
   
• s.54 and Failure to Notify Avant
  Insurance Limited v Burnie [2021] NSWCA 272
  Darshn v Avant Insurance Limited [2021] FCA 706
   
• Professional Services Exclusion
  Liberty Mutual Insurance Company, Australia Branch v SunWater Ltd [2021] NSWSC 1582

This seminar will be highly-relevant to claims staff and managers, regulatory/compliance and risk teams, in addition to internal counsel.

In the 14 February 2022 decision in Osei v P K Simpson Pty Ltd [2022] NSWCA13, the Court of Appeal clarified an important issue regarding the cap on costs for personal injury damages matters, as set out in clause 2 of Schedule 1 to the Legal Profession Uniform Law Application Act (NSW) 2014.

We are pleased to invite readers to join Holman Webb's Insurance Group for our first webinar of the year: 2021 - A Year in Review.

Presented by Partner and National Insurance Group Leader John Van de Poll and taking place on Wednesday 23 February 2022, this webinar will examine a range of significant cases from 2021.

The practitioner in the matter of Hampshire v Health Care Complaints Commission [2021] NSWCA 283 was first registered as a medical practitioner in 1976, and had been a consultant psychiatrist since 1988.

His registration was cancelled by the NSW Civil and Administrative Tribunal in 2020 because he had sent sexually inappropriate text messages to a young woman after a medico-legal assessment of her in April 2017. He had also failed to comply with health conditions on his registration that imposed limits on his intake of alcohol and sedatives, and he was considered not competent to practice due to alcohol dependence.

This matter is not the first to clearly illustrate the importance of complying with professional standards, and the risks of failing to do so.  Hampshire v Health Care Complaints Commission [2021] NSWCA 283 is similar to the matter of Rahman v Health Care Complaints Commission [2021] NSWCA 247 (discussed in Holman Webb’s December 2021 article), in that the practitioners in question both had histories of non-compliance with conditions, which gave the respective Tribunal Members no confidence that either would adhere to further conditions imposed.

It is common practice for insurers to offer policies of insurance where persons or entities other than, or in addition to, the named insured receive the benefits of the relevant insurance cover as additional insureds or third party beneficiaries.  Under the Insurance Contracts Act 1984 (Cth) (‘ICA’), a third party beneficiary to a contract of insurance has a right to recover from the insurer the amount of any loss suffered by the third party beneficiary, even though the third party beneficiary is not a party to the contract.

The ICA defines “third party beneficiary” as a person who is not a party to the contract, but is specified or referred to in the contract as a party to whom the benefit of insurance cover extends.  While the ICA has attempted to provide some certainty in relation to the status of third party beneficiaries, some confusion remains surrounding the rights and status of entities claiming entitlements under policies of general insurance.

Such confusion often stems from the wording of the contracts which underly this obligation – although similarly, the policy wording and its application can create confusion at times. Regardless, it is important for parties to be aware of the risks associated with both naming and not naming interested parties on policies of insurance.

The recent NSW Supreme Court decision of Liberty Mutual Insurance Company, Australia Branch v SunWater Ltd [2021] NSWSC 1582 restates the relevant principles to be applied when considering the application of professional services exclusion clauses when construing an insurance contract.