Insurance Law



Insurance Law


 

By: Stephen White, Partner and Sarah Tuhtan, Solicitor; Carter Newell (Queensland, Australia)

In recent years with the advent of the "mining boom" in Queensland and Western Australia, insurers defending personal injury claims have been confronted with the argument that injured workers in the resource sector should receive significant damages for economic loss.

The Queensland Court of Appeal recently considered the assessment of damages for a worker (the appellant) at a mine site who had no residual earning capacity after he was injured, and who had a significant prior medical history and opioid dependency.

Specifically, the Court of Appeal was asked to determine whether there was an error in the calculation of the appellant's general damages, loss of earning capacity and, critically, whether the primary judge had erred in measuring the appellant's chance of continuing to work in the mining industry but for the incident.

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By: Glenn Biggs, Partner and Peter Dovolil, Senior Assoicate; Carter Newell (Queensland, Australia)

Aerial spraying, also known as crop dusting, involves the use of aircraft to spray crops or agricultural land with fertilizers, pesticides or fungicides. The propensity for the substance being applied aerially to 'drift' is well known, and when applying pesticides can lead to unintended damage on neighbouring land. Claims arising from such situations are commonly referred to as spray drift claims, and there have been a number of recent decisions which have provided guidance in relation to the principles which apply in such claims.

Whilst each case will turn on its respective facts, generally spray drift claims involve three sets of parties, the owner(s) of the property which has commissioned the aerial spraying, the company / individuals performing the aerial spraying and the owner(s) of the land or property which is damaged by the spray drift.

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By: Mark Brookes, Partner and Jessica Schaffer, Solicitor; Carter Newell (Queensland, Australia)

Defamation claims have become increasingly difficult to sustain, which is good news for insurers. This case is a helpful reminder of the short one year limitation period for bringing claims.

Facts

In Ghosh v Ninemsn Pty Ltd & Ors(1) the plaintiff was the director of a company which owned two rental properties at Surfers Paradise. Numerous news stories, internet publications and articles were broadcast by the defendants on various media outlets referring to the properties as party houses and showing the tenants trashing the property and engaging in drunken behaviour.


The plaintiff commenced proceedings against the defendants for, amongst other things defamation and trespass/breach of privacy. In particular, the plaintiff alleged numerous media organisations defamed her through the repeated publication of stories on television, in newspapers and on the papers' affiliated websites. Additionally, the plaintiff alleged trespass against two media organisations "who breached [the plaintiff's] privacy by publishing photos and slanderous stories about the house and its owners." (2).

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Contact: Carter Newell (Queensland, Australia)

The Insurance Contracts Amendment Bill 2013 (Cth) received Royal Assent on 28 June 2013 and is now in effect as the Insurance Contracts Amendment Act 2013 (Cth) (the ICAA).

The ICAA has travelled a long and bumpy road but now, almost ten years after it was first conceived,(1) the ICAA has become law. This brings the Insurance Contracts Act 1984 (Cth) (the ICA) up to speed with developments in technology and the insurance industry, as well as addressing a number of unforeseen problems that have arisen since the ICA was first drafted.

There is a vast amount of information available on the rationale of the amendments and this article contains only a broad overview of the background and effect of the amendments to the ICA.

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Contact: Carter Newell (Queensland, Australia)

Duty of care does not arise merely as a result of a person's familial relationship with an injured party, but due to their control of the circumstances giving rise to the risk to the injured party.

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