Please find below Holman Webb Schedule of Non-Economic Loss under the Civil Liability Act 2002 (NSW) for 2014/2015.

Welcome to the first edition of the Holman Webb Insurance Law Bulletin.

This edition of the Bulletin highlights cases on legal professional privilege, bullying, workers compensation, aviation, liability and medical malpractice. We also discuss the recent High Court decision in respect of section 54 of the Insurance Contracts Act

S54 of the Insurance Contracts Act 1984 (Cth) may well be the bane of all insurers as it is really a double-edged sword. In essence, it prevents an Insurer from relying on a breach of a policy condition to deny a claim because the insured has committed a particular act, error or omission (after the policy is entered into) which did not cause or contribute to the loss. However, the insurer may instead, reduce the claim to the extent of the prejudice it has suffered.  If the act, error or omission caused or contributed to the loss, then the insurer can refuse to pay the claim.

Mrs Paul underwent a scan to determine whether she had a berry aneurysm in 2003, which her radiologist, Dr Cooke failed to diagnose at the time. In 2006, Mrs Paul underwent a further scan in which the aneurysm was detected.

This year's AICLA-ANZIIF Claims Convention program examined the changing nature of the insurance claims business.  The conference covered a variety of issues including business development, offshoring, cyber security, fraud, professional privilege and how social media will change the claims sector.

Two recent decisions of the Federal Court and the New South Wales Supreme Court can be of assistance to insurers to avoid providing certain documents to opponents. Some correspondence with witnesses, including expert witnesses, and drafts of reports and statements do not have to be produced if legal professional privilege applies to the documents (i.e. if the documents were created for the dominant purpose of a lawyer providing legal advice or for the purpose of litigation).

In the recent case of McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476, the New South Wales Court of Appeal held that a hospital and the health district was liable to the family members of a man who was murdered by one of its patients.

Mr Pettigrove suffered from a lengthy history of mental illness including depression, psychosis and chronic paranoid schizophrenia. In the early hours of 20 July 2004, Mr Pettigrove’s friend, Mr Rose, became concerned about his mental state and arranged for him to be taken by ambulance to Manning Base Hospital (the Hospital) in New South Wales. The principal cause of Mr Rose’s concern was that his friend was experiencing what he described to be “physical jerks”.

Holman Webb Lawyers acted as the instructing solicitors for the respondent at trial and in the appeal.

In a recent case (470 St Kilda Road Pty Ltd v Robinson [2013] FCA 1420), the Federal Court ruled against an insurer that sought to rely on a professional services exclusion in a D&O Policy to deny indemnity.

The case provides useful guidance on the court’s approach in construing exclusion clauses and the meaning of ‘profession’ and ‘professional’.

FEBRUARY 2015 - UPDATE: “Please note that this case has been the subject of a successful appeal by Dr Dekker to the WA Supreme Court. Readers should review a report on this appeal in the February 2015 issue of the Holman Webb Law Bulletin”  

A recent finding of the State Administrative Tribunal of Western Australia has sparked debate amongst Australian doctors and brought into focus the wide scope of what might constitute “improper or infamous” conduct by a registered medical practitioner.