Being involved in a car accident can be a shocking and frightening experience and it may be difficult to remember what to do straight away. There are a number of things you should do when you are involved in a car accident to protect your interests.
If you have been involved in a car accident, you should take as many photos of the vehicles’ respective positions and damage as you can. If it is safe to do so, take photos of the vehicles where they are positioned immediately following the collision, otherwise move the vehicles to a safe place.
Speak with the other driver and obtain their contact details, including their name, contact numbers, email, residential address, driver’s licence and insurance details. If you are taking a photo of their driver’s licence always check the reverse for any change of address stickers.
Obtain the contact details and a witness statement of any witnesses who saw the collision occur.
Refrain from apologising or admitting fault to the other driver or any witnesses, even if you believe you may be at fault. This could be seen as an admission of liability, even if you were not at fault.
Generally, you do not need to call the police to report the incident, unless a person has been injured, a vehicle is obstructing the roadway, the other party drives away without exchanging details or refuses to provide you with their details, or you suspect the other party is under the influence of drugs or alcohol.
Write down a detailed statement and diagram of your version of events as soon as possible following the collision and remember to date and sign it. It may be some time before a dispute arises, and by that time you may have forgotten key aspects of the collision.
Consider lodging a claim with your insurer if applicable, depending on your type of cover. You may wish to discuss your policy with your insurer and consider your options prior to lodging a claim.
Where there is a dispute about who is at fault and you are not insured, you may wish to seek legal advice as to your options in recovering damages from the other party or defending your position if there is a claim made against you.
If a person or their insurer is chasing you for losses they have suffered as a result of a car accident, you should not ignore their demands. If legal proceedings are commenced against you, additional costs and interests may be added to their claim against you.
If you agree with the demands being made against you, but can’t make immediate payment due to your financial situation, you should try to negotiate with the other party or seek to enter into a payment plan. If you wish to dispute their demands, you should advise your insurer or seek legal advice about your options.
If you have been involved in a car accident and are uninsured, call our team of injury compensation lawyers today to discuss your options.
The Australian Financial Complaints Authority (AFCA) recently determined a dispute between Auto & General Services Pty Ltd (Auto & General) and their insured, who made a claim for a motor vehicle incident. The AFCA determined whether an insurer could reject a claim on the basis of non-disclosure of a criminal conviction in circumstances where they had knowledge of the criminal conviction.
Background
Auto & General rejected their insured’s claim due to the non-disclosure of a previous criminal conviction. The insured argued that there was no non-disclosure as the insured had previously had a phone conversation with the insurer regarding a separate claim, where they had disclosed the criminal conviction.
Determination
The AFCA found that there was no non-disclosure by the insured because they had disclosed the criminal conviction on a previous occasion. Auto & General was already aware of the insured’s criminal conviction due to a disclosure made in the course of a previous claim. Section 21(2)(c) of the Insurance Contracts Act 1984 (Cth) (the Act) provides that the duty of disclosure does not require disclosure of a matter that the insurer knows or ought to know. As such, it was found that Auto & General knew of the criminal conviction and could not reject the insured’s claim on the basis of non-disclosure.
However, the AFCA found that there had been misrepresentation by the insured when the insured had answered “no” when applying for a policy and was asked if there were any relevant criminal offences.
Section 28(3) of the Act entitles the insurer to reduce their liability to the position they would have been in had the misrepresentation not been made. The insurer argued that had the insured not made the misrepresentation, they would not have provided the policy.
The AFCA found in favour of Auto & General, holding that they were entitled to reject the claim for misrepresentation.
Implications of this decision
It is important to understand your obligations under an insurance policy and how non-disclosure and misrepresentation may affect your claim outcome. Even if your insurer was previously made aware of a matter you are required to disclosure, you should continue to be truthful and transparent about matters which may affect your policy.
If you have any questions or concerns please contact Chamberlains and talk to one of our insurance law experts today.
The Australian Financial Complaints Authority (AFCA) have approved the commencement of a second COVID-19 business interruption test case by the Insurance Council of Australia. The Federal Court of Australia will hear the case, consisting of nine small business claims lodged with AFCA related to insurance claims with Allianz, IAG, Chubb, Guild and SwissRe Corporate Solutions.
We recently wrote about the first COVID-19 business interruption insurance test case, which was determined by the NSW Court of Appeal and affirmed by the High Court of Australia. You can read our post about this case here
The Insurance Council of Australia has confirmed that the second test case will consider the meaning of policy wordings in relation to the definition of a disease, proximity of an outbreak to a business, and prevention of access to premises due to government mandates. The case will also determine how policies are affected by government financial support such as JobKeeper.
If you lodge a claim related to COVID-19 business interruption which relates to one of the issues that will be determined in the second test case, your claim may not be finalised until this case is determined.
The second test case trial is expected to take place in late August 2021, with any appeal expected to be heard in November 2021.
If you hold an insurance policy which may respond to losses suffered as a result of the COVID-19 pandemic, or your claim with respect to COVID-19 business interruption has been denied, call us today to discuss your options.
If you have any questions or concerns please contact Chamberlains and talk to one of our insurance law experts today.
In Matthew Short & Associates Pty Ltd v Riviera Marine (International) Pty Ltd and Anor [2001] NSWCA 281, the New South Wales Court of Appeal clarified the meaning of future goods under the Sale of Goods Act 1923 (NSW). Further, the Court considered the implications of the exclusion clauses used by agents, but not provided to the owner.
In 1997, a broker purchased, on behalf of his client, a boat from Riviera. Riviera engaged a forwarder, Short, to arrange for the boat to be transported via overseas freight. It was agreed that Riviera was to transport the boat to a parking lot in the Port of Botany, where a mobile crane operator arranged by Short would lift the boat onto a low-loader.
Short engaged Campbell to pick up the boat with its crane and transfer the boat onto a low-loader. Campbell agreed to provide a low-loader and driver to Riviera under the Conditions of Carriage dated 12 August 1996.
Clause 3 of the Conditions of Carriage stated:
“Subject to cl 18 and 20 hereof the carrier shall not be under any liability whether in tort or in contract for any loss of or damage to or misdelivery, delay in delivery, concealed damage, deterioration, contamination, evaporation, non-delivery of goods held in its care, custody or control, or any consequential loss arising therefrom howsoever caused including but not limited to any negligence or breach of contract by the carrier.”
Clause 21 stated:
“The Consignor will indemnify and keep indemnified the carrier or any other subcontractor, company, firm, person or body through whose hands the goods may pass against all claims for loss, damage, injury to any property or person arising from the carriage of the goods or the noncompliance with any special conditions and any laws, by-laws and regulations including but not being limited to those set out in clause 2 hereof and without limiting the generality of the foregoing will pay on demand to the carrier the full value of any other goods carried by or for the carrier and destroyed or damaged as a result of the carriage of the goods of the consignor or of any noncompliance as aforesaid.”
On 12 August 1997, Campbell lifted the boat onto a low-loader and drove negligently beneath an archway causing damage to the boat.
Riviera sued Short and Campbell for the cost of repairs. Riviera alleged that there was a contract of bailment between it and Short. Short cross-claimed against Campbell for indemnity or contribution by relying on clause 21 of the Conditions of Carriage.
On 19 May 2000, verdict in favour of Riviera was made. Short was ordered to indemnify Campbell under clause 21 of the Conditions of Carriage. Short appealed and Campbell cross-appealed.
Campbell attempted to argue that:
Heydon JA (Meagher JA and IPP AJA concurring) in allowing the appeal and dismissing the cross-appeal noting the following:
Riviera and Short were not at the time in a legal relationship of bailment, as Short was not in “possession” of the boat. At best, Short was in “control” of the boat for a short time.
Short was not in breach of duty of care to Riviera.
The Sale of Goods Act 1923 (NSW) (SOGA) governed the relationship between the parties. Since the contract was for future goods, the time fixed by section 23, rule 5 of the SOGA meant that it was replaced by the time of earlier payments. However, that was not the intention of Riviera and the broker to transfer the boat at the time of payments, instead the intention of the parties, supported by documentation, was to pass ownership when the boat was loaded onto the freighter.
Section 5(1) of SOGA defined:
“’Future Goods’ means goods to be manufactured or acquired by the seller after the making of the contract for sale.”
Section 23 rule 5 of SOGA states:
“Unless a different intention appears, the following are rules of ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer.
…
Rule 5.
The Court found that the property was unable to pass until the goods were ascertained. Strictly speaking the contract between the broker and Riviera was not a sale, but an agreement to sell the boat (consider section 6(3) and (4) of the SOGA).
Short was not a bailee at the time of the accident and, therefore, Campbell was not a sub-bailee. The Court found that there was insufficient evidence to suggest that Riviera consent to clause 3 of the Conditions of Carriage.
The exclusion of liability clause in the Conditions of Carriage between Short and Campbell, did not defeat Riviera’s claim against Campbell.
This case acts as a reminder that everyone should read the Terms and Conditions provided by agents whose services are intended to be utilised. Otherwise, it is possible that a party might be found liable for the costs associated of the agent’s negligence, as was Short in this case.
If you have any questions or concerns please contact Chamberlains and talk to one of our insurance law experts today.
In Clutch & Brake Australia Pty Ltd v Khamis [2018] NSWSC 777 (Clutch), the Court considered the implications of Part G of Practice Notice: Civil Civ 1. The decision reminds practitioners to consider and advise their clients in relation to the capped costs provisions in the General Division of the Local Court. This is especially important for clients who are likely to be awarded judgment of less than $20,000.00 or their proceedings have been transferred from the Small Claims Division to the General Division of the Local Court of New South Wales.
Facts
Clutch & Brake Australia Pty Ltd commenced proceedings in 2015 in the Local Court General Division as a result of a motor vehicle property damage claim.
The proceedings settled pursuant to short minutes of order between the parties. On 31 October 2016, the following orders were entered by the Court:
The plaintiff had its costs assessed. The costs assessor determined that the plaintiff’s costs should be capped at a maximum 25% of the amount claimed pursuant to Part G of the Practice Notice: Civil Civ 1 (Practice Note). The plaintiff sought that this decision be reviewed. On 29 September 2017, the costs review panel dismissed the plaintiff’s appeal.
The plaintiff appealed the decision of the costs review panel to the Supreme Court of New South Wales.
Counsel for the plaintiff argued that the Practice Note provided guidance as to the costs orders that should be made.
Justice Harrison determined that the main issue was whether the costs orders in the short minutes of order made by the Local Court were subject to a maximum costs cap as per the Practice Note.
Justice Harrison noted that the Practice Note must be read in conjunction with the Uniform Civil Procedure Rules, as it governs the way in which proceedings are expected to be administered. Nonetheless, if a party does not wish for the Practice Note to apply, there is a specific provision in the Practice Note that allows the party to seek an “otherwise” costs order from the Court, allowing for the costs not to be capped.
Justice Harrison dismissed the plaintiff’s appeal.
Implications
The Supreme Court of New South Wales helpfully reminded practitioners that if they do not wish for their client to be bound by the costs caps that are set out in Part G – 38.2 of the Practice Note, they should consider filing a notice of motion and affidavit in support providing an explanation for the reasons to vary the maximum costs order available to be awarded to their client under the Practice Note.
If you have any questions or concerns please contact Chamberlains and talk to one of our insurance law experts today.
A man took a denial of a claim under a private jewellery and valuables insurance policy held with Lloyd’s covering the cost of a watch insured for the sum of $39,225.00 to the Australia Financial Complaints Authority for determination.
The man had taken the watch off and placed it in his car’s centre console. He had hidden it in the car prior to attending a shop and spending the afternoon sightseeing at a number of locations.
The man arrived home at around 5pm with his partner and when he tried to locate his watch where he left it, but found it was missing.
He then reported the theft to NSW Police and lodged a claim under his insurance policy.
The insurance policy held with Lloyd’s included an exclusion relating to the loss or theft of the watch which stated as follows:
Safe / Worn Clause – Applicable
The following is included in the policy:
We do not cover loss of or damage to Your Valuable Article caused by theft or disappearance unless at the time of such loss or damage Your Valuable Article(s) is (are):
Lloyd’s proceeded to deny the claim based on the fact that the watch was not stolen in the context which the policy responds to. The watch was not taken from the man whilst he was wearing or carrying it and was not in his immediate possession or supervision.
The Australian Financial Complaints Authority (AFCA) upheld the denial by Lloyd’s, and confirmed that they were entitled to rely on the exclusion noting that items that are valued over $10,000.00 must be supervised by the insured.
In this scenario, it was not clear when the watch was stolen due to it being left in the vehicle unsupervised and could have been at any point in the afternoon. There was no evidence provided to AFCA as to how the vehicle would have been accessed or any signs of entry by way of force.
Given these factors and the nature of the loss was explicitly excluded from cover in the policy, AFCA was satisfied that the insurer could decline the claim based on the policy exclusion outlined above.
The watch owner also alleged that the broker had not explained the conditions that limited his coverage under the policy. However, it was found that the broker had specifically referred to this limitations and requested the watch owner to read the documentation prior to entering into the policy.
If you have any questions or concerns please contact Chamberlains and talk to one of our insurance law experts today.
A woman held a car insurance policy with Suncorp insuring a 2013 Kia Optima for the sum of $14,700.00. The woman’s vehicle was involved in a collision and was deemed a total loss for the sum of $14,000.00.
The woman alleged that Suncorp had wrongly paid the sum to her estranged husband who she was divorcing.
The woman took the matter to the Australian Financial Complaints Authority (AFCA) seeking the following relief:
In order to grant the relief sought, AFCA would need to be satisfied that the women was solely entitled to the settlement sum of the claim while her husband was not entitled to any funds whatsoever.
The woman submitted that the vehicle was purchased with funds that would have formed part of the divorce settlement.
AFCA held that Suncorp did mishandle the claim to the extent that they paid the settlement sum of the claim to the husband without seeking the consent of the wife. AFCA submitted that Suncorp should have obtained the consent of all insured parties prior to issuing a payment under the policy.
Suncorp submitted that at no point prior to payment was it notified of any breakdown in the relationship. However, the husband had contacted Suncorp three weeks prior to the collision that resulted in a claim being submitted and stated that he was divorcing his wife and the car would be part of a divorce settlement. AFCA considered that this should have put Suncorp on notice of the issues of paying one party without consent of another.
AFCA held that “in the absence of such an agreement or court order, an insurer that disburses a benefit to one jointly-insured party risks depriving another jointly-insured party of their entitlement.”
Despite the misconduct of Suncorp, AFCA held that the fairest approach was for the matter to resolve “as part of the divorce proceedings” and Suncorp did not need to to pay compensation to the wife. AFCA’s ruling stated that “without an agreement between the complainant and (her husband), or a court order, AFCA cannot determine whether one of them is solely entitled to the claim settlement, or whether each of them is entitled to part of the claim settlement”.
The above was also based on the fact that the wife did not provide any evidence that she was solely entitled to claim the settlement payment from Suncorp or that it was the wife alone that had paid for the insurance over the motor vehicle. All information before AFCA showed that her husband also had an interest in the car.
Chamberlains Law Firm can assist you with the legal questions anything about Family Law. Contact us!
The High Court of Australia reinforces the position in respect of a ruling to admit expert evidence pursuant to section 79 of the Evidence Act 1995 (NSW) (“EA”).
As described by French CJ, Gummow, Hayne, Crennan, Kieffel and Bell JJ, this decision in the matter of Dasreef Pty Ltd v Hawchar [2011] HCA 21 has been crucial to the ‘basic rule’ that ‘opinion evidence is to be excluded unless the factual bases upon which the opinion is proffered are established by other evidence’. Heydon J reaffirmed this position throughout the judgment by signalling there to be a proposition that identifying factual assumptions made by experts is of utmost importance and is a requirement to the admissibility of evidence in the EA. It is of utmost importance that an expert discloses the reasoning used to arrive at a particular conclusion.
Background
Hawar, the defendant to the proceedings, was an employee of the plaintiff, Dasreef Pty Ltd (“Dasreef”). During the course of Hawar’s employment with Dasreef, he was exposed to dust containing silica.
This eventuated to Hawar contracting a disease known as ‘silicosis’. Hawar commenced proceedings in the Dust Diseases Tribunal of New South Wales against his employer and sought to rely upon the opinion of Dr Basden (“the Expert”) to establish the steps available to Dasreef to assist with the minimisation of risk of injury caused from the inhalation of silica.
The Expert, in arriving at his opinion, said that there would have been between 500-1000 times the appropriate amount of silicia at the site where Hawar was employed. The Expert noted that this position is based on a ‘ballpark figure’ and was only made to justify that Hawar was not protected in the course of his employment with Dasreef.
The trial judge in the first instance relied on the Expert’s opinion and concluded that Hawar’s disease was caused by his exposure to silicia of which he would not have had if Dasreef minimised the risk.
Court of Appeal Decision
Dasreef appealed the decision made in the Dust Disease Tribunal and objected to the evidence provided by the Expert on the basis that the Court cannot satisfy itself that the opinion was wholly or substantially based on the knowledge of the Expert based on his training, study or experience and refuted that the section 79 EA exception had been satisfied.
The Court of Appeal effectively dismissed the matter brought by Dasreef and the trial judge made the following comments:-
“…[the Expert’s] reasons for coming to the opinion are clear: his experience and specialised knowledge allowed him to say that given that dusts have a consistent fraction of respirable content and that given Mr Hawchar was working in clouds of silica as the evidence revealed, an inexact estimate of the concentration of respirable silica dust was what he said it was – a thousand times the acceptable level of the standard”
The Court of Appeal provided that the Expert’s opinion was wholly or substantially based on his knowledge, experience and training and accordingly dismissed the appeal save for the position on costs.
Appeal to the High Court of Australia
The High Court of Australia delivered a joint judgment save for Heydon J and found that the Expert’s evidence was in fact inadmissible and the decisions of the Dust Disease Tribunal and Court of Appeal were incorrect.
The High Court disbelieved that the expert opinion about the numerical level of silica at Dasreef’s site was based on the Expert’s specialised knowledge. In fact, the High Court said that the opinion was more so based on the measures that could have been taken by Dasreef to ensure Hawar did not contract a disease. It was not intended by the Expert to comment on the permissible levels of respirable silica at a particular location, but rather, diverting blame on Dasreef to assist Hawar in coming to a conclusion that liability ought to be imbued on Dasreef.
In the High Court’s application of section 79 EA to the Expert’s report, the joint judgment stated that:
“In order for [the Expert] to proffer an admissible opinion…[the Expert] tendering the evidence must have first demonstrated that he had specialised knowledge based on his training, study or experience that permitted him to measure or estimate the amount of respirable silica to which a worker undertaking the relevant work would be exposed. It would have been necessary for the party tendering the evidence to demonstrate that the opinion which [the Expert] expressed was wholly based on that knowledge.”
Implications
This decision did not necessarily change the manner in which the Courts now view section 79 EA, but rather, the decision acts as a reminder on solicitors and experts to ensure that an opinion must be wholly or substantially based on training, knowledge or experience, failure to do so or opinions made to imbue liability on another party without basis can have disadvantageous consequences.
There is no doubt that experts occasionally speculate within their reports, however solicitors obtaining expert opinions must be cautious and ensure that they are not relying on an expert’s speculations. If a speculation is relied upon, there is concern that such proffered opinions could be deemed inadmissible by the Courts and such consequences will result in unfavourable results for your client/s.
If you have any questions or concerns please contact Chamberlains and talk to one of our insurance law experts today.
Experts have a paramount duty to furnish legal officers with scientific information to ensure the accuracy of their conclusions. This enables a Judge or other legal personnel to form an independent and unbiased view on proving factual issues in proceedings.
There are many cases where it is difficult to locate an appropriate expert to comment on a particular fact in issue. There are avenues adopted by the Courts to overcome this obstacle and this is a case where Lee J of the Federal Court of Australia has decided to consider the appointment of an assessor.
It is important to note that the nature of such an appointment must not usurp delegation of judicial powers.
Background
In the matter of McNickle v Huntsman Chemical Company Australia Pty Ltd (Expert Evidence) [2021] FCA 370, the applicant claimed that products containing glyphosate were carcinogenic and consumption or inhalation of these organophosphorus compounds causes Non-Hodgkin’s Lymphoma. The applicant in this case alleged that a corporation trading as Monsanto negligently sold these products despite knowledge of its effects.
Appointment of a Court Assessor
Due to the seriousness of the allegations made by the applicant, the Court considered it prudent to appoint a Court assessor to assist with unravelling the issues within the matter and ensuring that bias in expert evidence is not a concerning factor.
Unsurprisingly, both the applicant as well as the respondent disputed such a suggestion and sought to rely upon their own experts notwithstanding the difficulties associated with locating an expert that can provide expert opinions on the specialised area.
The Federal Court relied upon section 33ZF of the Federal Court of Australia Act 1976 (Cth) (“Act”) in conferring its power to appoint a Court assessor. The Act confers a power to “the making of orders as to how an action should proceed in order to do justice”. Moreover, the Federal Court exercised its discretionary power to appoint a Court assessor.
In appointing an assessor, the Court considered the functions of the assessor and noted that they would not assess, but would rather act as an ‘assistant’ to the Court. The examples provided by the Court as to the functions of the Assessor were as follows, the Assessor would:
Key Takeaways
This decision not only shows that the Courts are able to assist the parties in understanding complex expert evidence, but rather it shows that there are many avenues that can be taken, to ensure that sensitive and delicate matters can be free from expert bias which is often influenced by parties to proceedings and their representatives.
The appointment of assessors is possibly going to become a more common theme in the Courts system for more complex matters, however, special care ought to be taken to ensure that assessors only perform permissible functions and do not act as expert witnesses.
It is of utmost importance that experts, in writing their reports, take caution and ensure that a scientific position is broken down and simple to understand. Failure to do so may result in significant costs consequences and unfavourable decisions.
If you have any questions or concerns please contact Chamberlains and talk to one of our insurance law experts today.
On 5 August 2021, the Federal Court of Australia handed down its decision in Star Entertainment Group Limited v Chubb Insurance Pty Ltd [2021] FCA 907. The decision provides further clarity for businesses seeking to make COVID-19 lockdown related business interruption claims through their insurer.
Background
The Star Entertainment Group (the Star) and its subsidiaries held an insurance policy with Chubb Insurance Australia (Chubb) and various other Australian and international insurers. The Star made a claim with Chubb for business interruption losses as a result of the COVID-19 related government restrictions across Australia. Chubb denied the Star’s claim on the basis that the policy did not cover for the losses claimed. In response, the Star sued Chubb and the other insurers for breach of contract.
Judgment
The Court considered that the relevant policy provided indemnity for physical loss, destruction or damage to the property, as well as for the losses resulting from business interruption due to the physical loss, destruction or damage to the property from insured perils. The Civil Authority Extension to the policy extended coverage to loss resulting from government activity in connection with insured peril.
The Star argued that this policy extension extended indemnity to loss of use or custom or financial loss resulting from the government restrictions related to the pandemic.
The Court rejected the Star’s argument, holding that the pandemic is not an insured peril and that this policy is not catastrophe insurance. The policy must be construed as providing cover for financial losses which result from the physical, loss or destruction caused by an insured peril. The Court considered that there was no physical damage to the property, and the policy did not extend to loss of use of the property where there is no physical damage.
Chief Justice Allsop held that “the policy, on its proper construction, does not respond to the claims as made”.
Implications of this decision
This decision provides clarity for both insurers and businesses when it comes to how certain policies respond to business interruption flowing from government restrictions in the current COVID-19 pandemic.
The Star is currently considering its appeal options, and any application for an appeal must be lodged by 2 September 2021.
If you have any questions or concerns please contact Chamberlains and talk to one of our insurance law experts today.