Unusually, in the second half of 2021 there have already been two cases relating to notifications under ‘claims made and notified’ policies, which have looked at whether an Insured’s failure to notify facts and circumstances that have the potential to give rise to a claim can be cured by section 54 of the Insurance Contracts Act 1984.

In this article, Insurance Partner Zara Officer discusses how the recent matters of Avant Insurance Limited v Burnie [2021] NSWCA 272 and Darshn v Avant Insurance Limited [2021] FCA 706 have clarified that omissions to notify facts and circumstances that might give rise to a claim are not omissions to which section 54 can apply.

On 10 November 2021, the Supreme Court issued an interesting decision in the matter of Chahrouk v Allianz Australia Insurance Limited [2021] NSWSC 1457 (10 November 2021).

From this case we can see the importance of clearly explaining any argument (or counter argument) on causation, in relation to each and every specific injury alleged.   Of course, one cannot ensure that a medical assessor does in fact consider the argument - but at least there will be grounds to seek Review. 

In addition, where a specific scientific study is material to a decision, then it ought to be identified in the decision, but a Panel is entitled to rely on settle medical facts and theories without elaborating on the source of that knowledge.

Congratulations to Insurance Partners Caroline Knight, Mark Victorsen and Matthew Baker - as well as Special Counsel John Chouris and both Holman Webb's Queensland and South Australian Insurance Groups on a selection of recent Doyle's Guide listings:

• Holman Webb Lawyers - First Tier - Leading Dust Diseases Law Firms (Defendant) - Queensland 2021

• Holman Webb Lawyers - Leading - Leading Dust Diseases Law Firms (Defendant) - South Australia 2021

• Mark Victorsen - Market Leader - Leading Dust Diseases Lawyers (Defendant) - Queensland 2021

• Matthew Baker - Recommended - Leading Dust Diseases Lawyers (Defendant) - Queensland 2021

• Caroline Knight - Preeminent - Leading Dust Diseases Lawyers (Defendant) - South Australia 2021

• John Chouris - Leading - Leading Dust Diseases Lawyers (Defendant) - South Australia 2021

In this case note, Insurance Special Counsel Joanne Vesper takes a look at the recent decision in Foti v Biordi [2021] NSWDC 496, delivered by Her Honour Judge Gibson of the NSW District Court on 16 September 2021.  Holman Webb Lawyers acted for the Defendants.

The New South Wales Government is considering ‘Decennial Liability’ insurance (or inherent defect insurance) - with the NSW Building Commission undertaking research, and due to report back to the Government in early 2022.

On 25 June 2021, the High Court of Australia refused two insurers special leave to appeal the decision of the NSW Court of Appeal in HDI Global Specialty SE v Wonkana No 3 Pty Ltd [2020] NSWCA 296.

The NSW Court of Appeal unanimously held that insurers could not rely on an exclusion clause contained in certain policies to refuse indemnity for business interruption claims arising out of the COVID-19 pandemic.

The first test case does not mandate a blanket approach to policy coverage for all business interruption claims. Each will turn on the language of each policy wording and the circumstances of each claim.

Insurers have sought further judicial guidance on a number of other matters affecting the operation of business interruption policies in the context of COVID-19 in a second test case, due to be heard by the Federal Court later this year.

This article was originally published by the Law Society of New South Wales in the Law Society Journal, Issue 80 August 2021.

In the Full Federal Court decision of Liberty Mutual Insurance Company Australia Branch trading as Liberty Specialty Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126 given on 20 July 2021, the Full Court addressed the construction and scope of thirdparty liability policies in the context of claims made by a building and construction company for losses occurring as a result of the manifestation of serious defects within a building, during the defects liability period.

Key Take Away

1. The Full Court maintained that in the event of ambiguity in an insurance policy, the context (including the market) in which the parties are operating, as well as the commercial purpose of the policy, must be considered (Icon’s Cross Appeal); and
2. Similarly, the Full Court considered that the context of Insurance Policies must always be considered in circumstances where the definition of ordinary words are not clear (QBE Appeal).
3. The Full Court ultimately prefers Policy Interpretation which refers to extrinsic contextual material where Policy terms are not clear.

Holman Webb is pleased to announce that Insurance Partner Lucy Rooney has been listed in Insurance Business Magazine's Elite Women in Insurance 2021!

Click through to watch Holman Webb's latest insurance webinar: Apportionment and Contribution in Insurance.

Presented by General Insurance Partner Peter Bennett and Associate Linda Huynh on Tuesday 6 July 2021, this webinar examines a range of significant cases relating to apportionment and contribution in insurance.

Discussion topics include:

• Contributory negligence.
• Failing to keep a proper lookout.
• Intoxication.
• Contributory negligence can defeat a claim by being determined at 100%.
• Contributory negligence in contract.
• Joint tortfeasor, where judgment entered for a defendant.
• Proportionate liability.
• Where the plaintiff is unable to recover from the concurrent wrongdoer.
• Liability of an employer for a hire worker.

​Holman Webb is pleased to announce six promotions across our Sydney, Melbourne and Brisbane offices – effective 1 July 2021.