NEWS - Holman Webb appointed to the Commonwealth preapproved Law Firms List

Making further external recognition of Holman Webb’s legal expertise, we are pleased to advise of our recent inclusion in the Commonwealth Government’s Legal Services Multi-User List. All Commonwealth Government departments and agencies (other than Commonwealth companies and government business enterprises) are required to use the law firms included on this list for their external legal services from 1 July 2013.

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Summary of article by UK legal academic Gerald Swaby entitled “Blurring distinctions: Should innocent insureds be tarred with the same brush as their fraudulent agents? (Insurance Law Journal April 2013 Vol 24 No. 1).

A husband and wife go through an acrimonious separation. One spouse acts violently against the other by burning the house down. Should the victim forfeit his/her insurance claim?

In his recent article, Gerald Swaby argues that the victim should not forfeit her claim in this situation. There have been a number of cases, where the husband and wife hold a joint policy and one party (frequently, the husband) commits a fraudulent act. The wife then makes a claim on the insurance policy. This begs the question – should she be indemnified either in full, or in part, under the policy?

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Mandatory notification has been in place for three years now, and, if we look beyond the encouraging rhetoric about improving patient safety, the scheme has kicked up some surprises, including last year's 40 per cent surge nationally in the number of reports made, which, the Australian Health Practitioner Regulation Authority (AHPRA) has, so far, been unable to explain.

While the increase might encourage belief in the scheme fulfilling its goals of ensuring patient safety, we should aslo bear in mind that the rise also increases the chances that health practitioners, who take the serious step of making a report, may face legal action when they do so. If we drill down into the 40 per cent increase, we find that the most significant contribution comes from Queensland where the number of reports has almost tripled, rising from 85 to 220.

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Does a plaintiff’s grandmother owe her grandchild a duty of care?

In the case of Hoffman v Boland (2013) NSWCA 158, the NSW Court of Appeal was split as to whether a duty of care arose in the circumstances of a domestic situation involving permanent injury to an infant - but the Court agreed after a lengthy opinion that there had been no breach and overturned the primary Judge's decision.

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Unlike the Bible, when David takes on Goliath in the real world, Goliath almost always wins. Not any more. Enter the new species of litigation – the class action and the litigation funder. As we become more risk averse to litigation, yet continue to live in an age of consumerism where goods and services are mass produced, the idea of an army of Davids is emerging.

Class actions are a species of litigation emanating from the US, where individuals joined together to take legal action against a company or Government. They are becoming more common in Australia, especially following tort reforms in 2002 and are referred to as ‘representative proceedings’ which can be brought by virtue of the Representative Group Proceedings Act 1991.

There are three threshold requirements. Firstly, seven or more persons must claim against the same defendant. Secondly, claims must arise from related circumstances and thirdly, there must be a substantial common issue of law or fact.

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Chand v Zurich Insurance

In a judgment handed down in the NSW Supreme Court, the Court was asked to determine whether an action for recovery of repair costs may be sought by an insurer, under its right of subrogation, after the settlement of recovery of rental car costs had been already finalised by consent judgment.

Adams J determined that there can be no splitting of actions for the recovery of repair costs and the recovery of rental costs, rather judgment for the first claim will preclude the second claim unless the defendant was aware of both claims at the time of the first settlement - as per the ‘Morganite’ principle.

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