Weekly Insurance Law Review: Friday, 29 May 2015 View in browser

A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Weekly Insurance Law Review

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Executive Summary (One Minute Read)
Roads and Maritime Services v Grant (NSWCA) - negligence - Authority not liable for motorcyclist’s injuries in collision with pedestrian barrier - appeal allowed
Smart v AAI Ltd; JRK Realty Pty Ltd v AAI Ltd (NSWSC) - insurance - deregistered company’s liability to plaintiffs not covered by insurance policy - proceedings dismissed
Lee v RACQ Insurance Ltd (QSC) - motor accidents insurance - insurer enjoined from reducing rehabilitation services provided pursuant to s51(3) Motor Accident Insurance Act 1994 (Qld)
Morris v Redland City Council (QSC) - negligence - plaintiff injured in fall from cliff onto beach at night while trying to locate stairs - Council not liable
Moon v Whitehead (ACTCA) - negligence - trespass to the person - respondent did not consent to sexual intercourse - appeal on liability failed - award of aggravated damages set aside
Summaries With Link (Five Minute Read)
Roads and Maritime Services v Grant [2015] NSWCA 138
Court of Appeal of New South Wales
McColl, Basten & Emmett JJA
Negligence - respondent motorcyclist injured when motorcycle collided with pedestrian barrier erected on median strip in centre of intersection - primary judge found Authority breached duty and that its breach caused respondent’s injuries -  primary judge also found it would be just and equitable to reduce damages by 30% for contributory negligence -  Authority appealed - held: Authority not liable for alleged breach because statutory immunity in s43A Civil Liability Act 2002 engaged - respondent did not establish mechanism of accident was as he contended - appeal allowed.
[From Benchmark Monday, 25 May 2015]
Smart v AAI Ltd; JRK Realty Pty Ltd v AAI Ltd [2015] NSWSC 392
Supreme Court of New South Wales
Beech-Jones J
Insurance - corporations - two proceedings brought against insurer under s601AG Corporations Act 2001 (Cth) -  in one proceeding plaintiff transferred amount to bank account of company which was finance broker - in other proceedings plaintiff transferred amount to company’s account - plaintiffs were persuaded to transfer funds by company’s general manager - general manager misappropriated funds - plaintiffs did not recover funds - company wound up and deregistered but was party to claims made insurance policy underwritten by defendant insurer - plaintiffs sued insurer under s601AG - whether company liable to plaintiffs immediately before deregistration - whether policy “covered” liability - held: company liable to plaintiffs for breach of contract - insurer could not invoke contributory negligence or proportionate liability provisions of Trade Practices Act 1974 (Cth) (TPA) or Civil Liability Act 2002 to diminish quantum of liability  - plaintiffs also established liability on company’s part for  engaging in false and misleading conduct contrary to former s52 TPA - however Court upheld certain of insurer’s reasons for contending company’s liability - liability of deregistered company to plaintiffs not “covered” - proceedings dismissed
[From Benchmark Tuesday, 26 May 2015]
Lee v RACQ Insurance Ltd [2015] QSC 120
Supreme Court of Queensland
Dalton J
Motor accidents insurance - applicant insured was travelling in vehicle - applicant injured in head-on collision with another vehicle - insurer stated it would meet ‘reasonable and appropriate cost’ of insured’s rehabilitation without admitting liability under s39(1)(a)(iv) Motor Accident Insurance Act 1994 (Qld) - insurer gave notice to insured that it would not pay rehabilitation costs past set date -  insured claimed insurer prevented from rescinding decision to pay costs by s51 - insurer contended claim against it was fraudulent - insured sought interlocutory injunction restraining insurer from ceasing to pay the costs - whether prima facie case - balance of convenience - held: insured had shown prima facie case - Court satisfied in all circumstances to make order that insurer was enjoined from reducing any rehabilitation services provided pursuant to s51.
[From Benchmark Friday, 22 May 2015]
Morris v Redland City Council [2015] QSC 135
Supreme Court of Queensland
Martin J
Negligence - plaintiff who had consumed alcohol injured in fall from cliff onto beach at Point Lookout on North Stradbroke Island at night while trying to locate stairs to beach - plaintiff sued council in negligence - plaintiff elected not to lead evidence against second defendant trustee of trust - plaintiff claimed track/path leading off from boardwalk had caused belief that path led to beach - ss13 15 & 47 Civil Liability Act 2003 - Council admitted duty to take reasonable care to avoid foreseeable risk of harm to plaintiff while he was at Point Lookout - held: Council did not cause or allow grassy path to exist - there was no path through headland to cliff - risk that someone might fall from top of cliff was not reasonably foreseeable - claim against Council dismissed - parties agreed on judgment for second defendant trustee of trust - plaintiff’s claim against trustee of trust had such remote prospect of success that action should not have been brought or continued - plaintiff to pay trustee of trust’s costs on indemnity basis.
[From Benchmark Wednesday, 27 May 2015]
Moon v Whitehead [2015] ACTCA 17
Court of Appeal of the Australian Capital Territory
Murrell CJ; Penfold & Burns JJ
Negligence - trespass to the person - sexual assault - appellant appealed against decision in which Master awarded damages to respondent for injury causes by non-consensual sexual intercourse imposed on her by appellant - whether respondent had consented to engaging in the sexual conduct - held: there was ample evidence upon which Master entitled to find appellant had not satisfied onus of proving respondent had consented to sexual intercourse - impossible to say Master’s finding was against evidence or weight of evidence - Master erred by failing to afford procedural fairness to appellant in relation to award of aggravated damages - award of aggravated damages set aside - judgment varied.
[From Benchmark Wednesday, 27 May 2015]
On Virtue
By Phillis Wheatley

O thou bright jewel in my aim I strive
To comprehend thee. Thine own words declare
Wisdom is higher than a fool can reach.
I cease to wonder, and no more attempt
Thine height t’explore, or fathom thy profound.
But, O my soul, sink not into despair,
Virtue is near thee, and with gentle hand
Would now embrace thee, hovers o’er thine head.
Fain would the heaven-born soul with her converse,
Then seek, then court her for her promised bliss.

Auspicious queen, thine heavenly pinions spread,
And lead celestial Chastity along;
Lo! now her sacred retinue descends,
Arrayed in glory from the orbs above.
Attend me, Virtue, thro’ my youthful years!
O leave me not to the false joys of time!
But guide my steps to endless life and bliss.
Greatness, or Goodness, say what I shall call thee,
To give an higher appellation still,
Teach me a better strain, a nobler lay,
O Thou, enthroned with Cherubs in the realms of day!

Phillis Wheatley