Insurance

A Daily Bulletin listing Decisions of Superior Courts of Australia

Reinstatement of deregistered company for proceedings before Dust Diseases Tribunal �

whether reinstatement was just. See Stone v ACN 000 337 940 Pty Ltd Negligent misstatement by financial adviser. See Sam George Sarkis v Samuel Mbakwe

Friday 10 October 2008 Click here to visit our website

Today�s Cases

Friday 10 October 2008 Insurance Australia Limited trading as NRMA Insurance v Helou [2008] NSWCA 240 Court of Appeal of New South Wales Allsop P; Campbell & Bell JJA Motor Accidents Compensation Act 1999 (NSW) & Assessment Guidelines - appellant sought review of decision of assessor in Claims Assessment & Resolution Service of Motor Accidents Authority � assessor had assessed amount of damages at $1,494,794.30, & claimant�s costs at $90,879.50 - no right of appeal of any kind to the Court concerning a decision of a claims assessor under the Act - jurisdiction that appellant NRMA invoking was under section 69 Supreme Court Act 1970 where Court can issue orders in the nature of certiorari - appellant contending assessor had not determined the �amount of damages�, within the meaning of section 94 MAC Act, because the assessor has failed to comply with a mandatory requirement of law concerning the manner in which damages are to be assessed - alternatively, NRMA contending that reasoning of assessor showed error of law on face of the record � principles & case law considered as to assessment of various heads of damage � appeal dismissed � an interesting judgment by Campbell JA. (B) Insurance Australia Limited trading as NRMA Insurance, and Insurance Australia Limited trading as NRMA Insurance � decision 14 December 2007 � see �Benchmark� Insurance & IBC 22 January 2008.

Roads & Traffic Authority of New South Wales v Turner and Anor [No 2] [2008] NSWCA 241 Court of Appeal of New South Wales Hodgson & Tobias JJA; Handley AJA Costs - Offer of Compromise by plaintiff before trial - judgment reduced on appeal - reduced judgment greater than offer - effect of offer on costs of appeal. (B) Roads & Traffic Authority of New South Wales, and Roads & Traffic Authority of New South Wales - decision 2 April 2008 - see �Benchmark� Insurance & IBC Friday 4 April 2008 - negligence � motor vehicle accident at Ulladulla - causation - multiple causes speed � smooth rear tyres � no �slippery when wet� sign � �but for� test - contribution - causative potency � culpability � primary judge had found that but for negligence of RTA accident would not have happened & held negligence of vehicle owner not a cause of accident & that first respondent driver had not been guilty of contributory negligence - appeal allowed. Carolyn Philips (nee Durrand) v Tower Australia Ltd [2008] NSWSC 1047 Supreme Court of New South Wales Einstein J Insurance � disability income benefit policy � for decision McDougall J 10 August 2007 see �Benchmark� 30 August 2007 & link below - clause in policy as to �other disability income� - defendant insurer accepted its obligation to pay benefits under the Policy in the relevant period � defendant claiming it was entitled to deduct amounts received by plaintiff in social security benefits over the relevant time �

Page 2 Click here to visit our website

whether payment of Social Security Benefits was pursuant to legislation which could fairly be characterised as similar to Workers Compensation, Workcare or Accident Compensation legislation � His Honour of the view that the provisions of section 94 Social Security Act distinguishable from concepts of Workers Compensation, Work care & Accident Compensation, so as not to qualify as "Other Disability Income" - interest under s57 Insurance Contracts Act 1984 (Cth) � date from which �it was unreasonable for the insurer to have withheld payment� � method of calculation of interest. (B) Carolyn Philips (nee Durrand), and Philips � decision McDougall J 10 August 2007 � in 1997, FAI Life Insurance Society Limited had issued disability income benefit policy of insurance to the plaintiff � plaintiff stopped paying monthly premiums on policy in 1998 � plaintiff said she did so because of representations made to her by an employee of FAI Life to the effect that she could suspend payments whilst she was on maternity leave, & reinstate the policy within thirteen months - defendant (Tower) the successor to FAI Life � defendant said that policy lapsed for non-payment of premium, & that the policy could only have been reinstated if a fresh underwriting assessment had been made - defendant cancelled policy � reinstatement sought � whether representations alleged by plaintiff were made by employees of defendant �answer �yes� - whether defendant estopped from asserting policy lapsed � answer �yes.�

Liverpool City Council v Estephen [2008] NSWCA 245 Court of Appeal of New South Wales McColl JA Personal injuries � motor accident - application to join parties to appeal - question of liability separately determined � appeal as to liability finding -application to add parties to appeal granted. Liverpool City Council Abraham as Tutor for Abraham v St Marks Orthodox Coptic College (No 3) [2008] NSWSC 1027 Supreme Court of New South Wales Rothman J Interest on legal fees � Legal Profession Act 2004 � Civil Procedure Act 2005 - on costs � two categories � interest orders. Abraham as Tutor for Abraham & Abraham as Tutor for Abraham v St Marks Orthodox Coptic College (No 4) [2008] NSWSC 1031 Supreme Court of New South Wales Rothman J Apprehended bias � personal injuries claim � separate determination of liability & damages � injury occurred when plaintiff nine years of age � fall from balustrade � liability judgment delivered in 2006 � this hearing as to assessment of damages � defendants� application that His Honour disqualify himself because of positive findings as to credit of witness at liability hearing � principles & case law considered as to test � whether reasonable apprehension that impartial mind cannot be brought to determination of issues � application for disqualification rejected � an interesting judgment. Abraham as Tutor for Abraham

Page 3 Click here to visit our website

Stone v ACN 000 337 940 Pty Ltd [2008] NSWSC 1058 Supreme Court of New South Wales Barrett J Insurance - application for order that ASIC reinstate registration of deregistered company - applicant wishing to pursue proceedings against company in Dust Diseases Tribunal � allegation of injury caused by exposure to asbestos in workplace - whether plaintiff may proceed direct against insured without reinstatement of company's registration - not shown that he can - explanatory memorandum of Company Law Review Bill 1997 (Cth) considered : it resulted in inclusion of ss601AH & 601AG Corporations Act 2001 (Cth) various factors relevant to whether reinstatement "just" - company in liquidation immediately before deregistration - need to re-install liquidator - former liquidator should be appointed unless unable or unwilling to act � orders to come into force as to reinstatement once position of liquidator clarified. Stone

From the District Court of New South Wales... Sam George Sarkis v Samuel Mbakwe [2008] NSWDC 220 District Court of Australia Rolfe DCJ Torts - negligent misstatement - defendant as financial adviser recommended plaintiff make loans to third party - plaintiff acted on advice & suffered loss - case law considered including Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1995-1997) 188 CLR 241 � plaintiff awarded damages in sum of $245,000 plus $145,376 so judgment for plaintiff in sum of $390,376 � plaintiff awarded indemnity costs from date after day on which defendant rejected second offer from plaintiff. Sam George Sarkis

From Canada... New Brunswick Power Corporation v Westinghouse Canada. Inc. and Asea Brown Boveri Inc., 2008 NBCA 70 Court of Appeal of New Brunswick Daigle, Larlee, Robertson JJ Contract - tort � supply of eight power transformers to appellants in the mid 1970�s with contract that provided for a one year warranty as to defects & a limitation on liability � transformers remained in service for some fifteen to twenty-five years before one of them began showing signs of overheating � appellants expended $12.5 million either repairing or replacing defective products � (appellant abandoned argument as to fundamental breach but) comprehensive consideration of history, principles & case law as to doctrine of fundamental breach � interpretation of contractual provisions relied upon

Page 4 Click here to visit our website

by Westinghouse to avoid liability - warranty clause � principles & case law as to interpretation of limitation & exclusion clauses � whether Westinghouse negligent in design of transformers � whether �limitation of liability� clause excluded appellant�s right to sue in tort � damages � appeal dismissed � cross-appeal allowed but only with respect to costs award made at trial � an interesting judgment. New Brunswick Power Corporation

And from Singapore... Sonny Yap Boon Keng v Pacific Prince International Pte Ltd & Anor [2008] SGHC 161 High Court of Singapore Judith Prakash J Building contract � torts � negligence � duty of care of architect - case law considered as to tort of deceit - memorandum of agreement for design & construction of three-storey semi-detached house � first defendant design & build contractor � second defendant architect - defects alleged - damages claimed for costs of rectification & reconstruction, for delay � counter-claim by first defendant - as against second defendant, plaintiff asserting fraudulent or negligent misrepresentations to him which he acted upon ; breach of duty of care to plaintiff in that he acted in conflict of interest & failed to explain nature and risk of design & build contract & failed to protect interest & rights of plaintiff when second defendant knew that plaintiff completely reliant upon him for proper advice � positive duty to give full & complete advice � �special relationship� - second defendant owed plaintiff duty to avoid negligently causing him to sustain economic loss. Sonny Yap Boon Ken Corrigenda: three cases appearing in today�s �Benchmark� Insurance � Insurance Australia t/a NRMA v Helou; RTA v. Turner ;Caroline Philips v Tower - should have been included in yesterday�s bulletin. We apologise to our readers for the omission.

Page 4 Click here to visit our website