Indemnity focus:  the meaning of ‘control’

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Indemnity focus:  the meaning of ‘control’

Penfold v The Hollard Insurance Co Pty Ltd [2021] NSWSC 1322

Insurers and brokers are often presented with a difficult fact-specific question to resolve – is property within the physical and legal control of an insured? An insured’s legal responsibility will often turn on this, and so too may its coverage position. In this article we look at a recent Australian decision which held that property owners may have “control” of goods on their property even if they have not charged for storage and have not exercised any power over the goods.

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Health & Safety prosecution:  when will a defendant be ‘reckless’?  

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Health & Safety prosecution:  when will a defendant be ‘reckless’?  

WorkSafe New Zealand v Waste Management NZ Limited [2021] NZHC 3444

There are few decisions in New Zealand which have looked at what conduct will amount to recklessness in the context of the Health and Safety at Work Act 2015 (the Act). This is why the recent High Court decision, declining WorkSafe’s application for leave to appeal the District Court’s decision, is so important.

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Focus on indemnity: Insurance Claim Time Barred – Clock Started Ticking Immediately

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Focus on indemnity: Insurance Claim Time Barred – Clock Started Ticking Immediately

Bann Carraig Ltd v Great Lakes Reinsurance (UK) Plc [2021] NIQB 63

This decision from the High Court of Northern Ireland is a cautionary tale for insureds not to delay too long after an insured peril before filing proceedings, and a reminder for insurers to consider potential limitation defences when faced with old claims.

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Get to know Edward

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Get to know Edward

Edward joined Fee Langstone last month as a Senior Associate, after time working in both large and boutique practices in Auckland, and in London. He has a broad range of civil litigation experience and has assisted clients in resolving challenges that have included contractual disputes, regulatory prosecutions, insolvency and debt recovery issues, as well as property and trust disputes.

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‘Swings and roundabouts’:  clarifying the ability to aggregate claims

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‘Swings and roundabouts’:  clarifying the ability to aggregate claims

The Right Reverend Nicholas Baines, Lord Bishop of Leeds v Dixon Coles & Gill [2021] EWCA Civ 1211

The English Court of Appeal recently considered whether claims brought against a law firm for the systematic fraud of one of its partners should be aggregated for the purposes of the limit of indemnity in the firm’s insurance policy. The English High Court’s judgment, upheld on appeal, was that the claims should not be aggregated and that each attracted a separate limit of indemnity.

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Who gets what?  Dividing recovery proceeds between insured and insurer

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Who gets what?  Dividing recovery proceeds between insured and insurer

Technology Swiss Pty Ltd v AAI Limited t/a Vero Insurance [2021] FCA 95

The Federal Court of Australia recently considered how to allocate between insurer and insured the proceeds of a recovery action against a third party. The case emphasises that an insurer has a right to share in the proceeds of a recovery action only to the extent that the insurer provides indemnity under the policy. Where the insurer pays a settlement to the insured for costs incurred by the insured which are not part of the indemnity provided by the policy then, absent a contractual right, the insurer has no right to share in the fruits of a recovery action. If the insurer wants to procure this right, it needs to ensure that the settlement agreement with the insured makes this clear.

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Clarifying minority shareholder’s buy out rights

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Clarifying minority shareholder’s buy out rights

Birchfield v Birchfield Holdings Limited [2021] NZCA 428

The Court of Appeal considered recently the issue of a minority shareholder’s rights in a case where the minority shareholder refused to accept buy-out offers and then claimed the company had acted in an unfairly prejudicial manner towards him. In so doing, the Court of Appeal also provided useful guidance on how the majority can use the summary judgment fast track procedure to buy out the minority.

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Second Covid test case in Australia favours insurers

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Second Covid test case in Australia favours insurers

Swiss Re International SE v LCA Marrickville Pty Limited [2021] FCA 1206

On 8 October 2021, the Federal Court of Australia handed down its decision on the second test case in Australia on business interruption response to COVID-19-related claims. Unlike the first test case,[1] the decision largely went the insurers’ way. Crucially, it also reached a very different conclusion from that reached by the United Kingdom Supreme Court in FCA v Arch UKSC Arch[2] in that country’s test case.

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Court dismisses claim by “consumer” for damage caused by fire to yacht

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Court dismisses claim by “consumer” for damage caused by fire to yacht

Tregidga v Pasma Holdings Pty Limited [2021] FCA 721

The Federal Court of Australia has recently considered and dismissed a claim against contractors carrying out electrical repairs on a yacht for fire damage. The legal basis for the decision and the reasoning employed by the court is of relevance to both material damage and liability insurers alike.

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A major victory for James Hardie:  No liability for Harditex cladding

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A major victory for James Hardie:  No liability for Harditex cladding

A major victory for James Hardie: No liability for Harditex cladding

Cridge and Unwin v Studorp Limited; Fowler and Woodhead v Studorp Limited and James Hardie New Zealand Limited [2021] NZHC 2077

The High Court has recently ruled against 144 Harditex-clad homeowners in their claim against James Hardie. The homeowners claimed, but did not establish, that the Harditex cladding was a cause of the weathertightness issues in their homes and that James Hardie breached its duty of care to them. The homeowners also failed to prove that James Hardie had engaged in misleading or deceptive conduct under the Fair Trading Act.

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Focus on indemnity: insuring the careless, reckless or wilful insured

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Focus on indemnity: insuring the careless, reckless or wilful insured

It is commonplace for insurance policies to include an exclusion for deliberate or wilful acts, or a condition precedent that an insured must exercise ‘all reasonable care’. Such clauses intend to incorporate into the policy a requirement for a certain standard of behaviour by the insured: failure to meet that standard renders the insured uninsured.

Two recent Supreme Court decisions from Victoria, Australia, and the United Kingdom have highlighted that the clauses will be construed in light of the commercial purpose of a policy, which presumes that foolish behaviour is intended to be insured. The facts of these cases are useful illustrations of this principle.

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Focus on health and safety: Reparation for emotional harm – what is relevant and who is entitled to it?

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Focus on health and safety: Reparation for emotional harm – what is relevant and who is entitled to it?

Ocean Fisheries Limited v Maritime New Zealand [2021] NZHC 2083

The High Court has recently dismissed Ocean Fisheries’ appeal against the amount of reparation for emotional harm imposed by the District Court following the death of three crew members of the Jubilee when it sank in 2015. The Court also allowed Maritime NZ’s cross-appeal against the District Court’s decision not to order emotional harm reparation be paid to a sister of one of the crew members.
The decision extensively considers the nature of the courts’ jurisdiction to order reparation including the quantum of such orders, who is entitled to an order, and the consequences of any voluntary payments.

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