In the 14 February 2022 decision in Osei v P K Simpson Pty Ltd [2022] NSWCA13, the Court of Appeal clarified an important issue regarding the cap on costs for personal injury damages matters, as set out in clause 2 of Schedule 1 to the Legal Profession Uniform Law Application Act (NSW) 2014.

We are pleased to invite readers to join Holman Webb's Insurance Group for our first webinar of the year: 2021 - A Year in Review.

Presented by Partner and National Insurance Group Leader John Van de Poll and taking place on Wednesday 23 February 2022, this webinar will examine a range of significant cases from 2021.

The practitioner in the matter of Hampshire v Health Care Complaints Commission [2021] NSWCA 283 was first registered as a medical practitioner in 1976, and had been a consultant psychiatrist since 1988.

His registration was cancelled by the NSW Civil and Administrative Tribunal in 2020 because he had sent sexually inappropriate text messages to a young woman after a medico-legal assessment of her in April 2017. He had also failed to comply with health conditions on his registration that imposed limits on his intake of alcohol and sedatives, and he was considered not competent to practice due to alcohol dependence.

This matter is not the first to clearly illustrate the importance of complying with professional standards, and the risks of failing to do so.  Hampshire v Health Care Complaints Commission [2021] NSWCA 283 is similar to the matter of Rahman v Health Care Complaints Commission [2021] NSWCA 247 (discussed in Holman Webb’s December 2021 article), in that the practitioners in question both had histories of non-compliance with conditions, which gave the respective Tribunal Members no confidence that either would adhere to further conditions imposed.

It is common practice for insurers to offer policies of insurance where persons or entities other than, or in addition to, the named insured receive the benefits of the relevant insurance cover as additional insureds or third party beneficiaries.  Under the Insurance Contracts Act 1984 (Cth) (‘ICA’), a third party beneficiary to a contract of insurance has a right to recover from the insurer the amount of any loss suffered by the third party beneficiary, even though the third party beneficiary is not a party to the contract.

The ICA defines “third party beneficiary” as a person who is not a party to the contract, but is specified or referred to in the contract as a party to whom the benefit of insurance cover extends.  While the ICA has attempted to provide some certainty in relation to the status of third party beneficiaries, some confusion remains surrounding the rights and status of entities claiming entitlements under policies of general insurance.

Such confusion often stems from the wording of the contracts which underly this obligation – although similarly, the policy wording and its application can create confusion at times. Regardless, it is important for parties to be aware of the risks associated with both naming and not naming interested parties on policies of insurance.

The recent NSW Supreme Court decision of Liberty Mutual Insurance Company, Australia Branch v SunWater Ltd [2021] NSWSC 1582 restates the relevant principles to be applied when considering the application of professional services exclusion clauses when construing an insurance contract.

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.