Insights Categories: Insurance

Agreement to mediate… are you certain?

Metropolitan Health Service v Sturm [2022] WASC 316 Key takeaways A contractual dispute resolution clause may be unenforceable for uncertainty if the clause does not set out all necessary terms for the conduct of a preferred dispute resolution process. Only the defined parties to a contract can be bound by a dispute resolution clause. Background […]

Regulation of Education and Care Providers: the Department of Communities in WA takes a stricter approach to compliance actions

Key takeaways The Education and Care Regulatory Unit of the Department of Communities (Department) is displaying a stricter approach in implementing compliance actions. Specifically, the Department is seeking penalties under both sections 165(1) and 167(1) of the Education and Care Services National Law (WA) Act 2012 (National Law) in compliance actions involving inadequate supervision and […]

All in the mind of the Insured – subjective test confirmed for breach of condition to take reasonable precautions

QBE Insurance (Australia) Limited v BB [2022] WASCA 61 Key takeaways An insured will not be in breach of a reasonable precautions condition if they show they did not recognise that a danger existed or that, recognising the existence of a danger, they took action they considered to be adequate to avoid it and were […]

Keeping an eye out: taking reasonable precautions to prevent a risk of harm materialising

Sidhoum v Minister for Education [2022] WADC 35 Key takeaways A school’s non-delegable duty of care extends to prevent students from engaging in risky behaviour in circumstances where the students should know better. The context of a situation is important when considering reasonable action to be taken in response to a risk. Background Mr Sidhoum […]

Gravel is slippery – isn’t that obvious?

Gladstone v Public Transport Authority of Western Australia [2022] WADC 6 Key takeaways A reasonable person in the position of an occupier is only required to take action that is proportional to the risk. A rolled ankle, with minimal loss of function alone is not sufficient for an award of compensation for non-pecuniary loss once […]

Mind your Ps and safety first!

Key takeaways For employers or principals, the benefit of following the 4Ps of safe working can never be under estimated: Plan, Prepare, Protect and Proceed. Confirmation of the premise that the principal or main contractors are not expected to supervise or have specialist knowledge of all the specialist trades working on a construction site at […]

The importance of health practitioners’ compliance with public health policies and directions

Brief Context In Nursing and Midwifery Board of Australia v Bergin [2022] VR 4, a registered nurse (Practitioner) was found to have engaged in professional misconduct due to her failure to remain in isolation while awaiting the outcome of a COVID-19 test. Background The Practitioner was employed at a residential aged care facility. By virtue […]

Help, my employer is suing me for negligence!

Beri Distributors Pty Ltd v Mossensons Pty Ltd [2022] WADC 30 Key takeaways Professionals are liable to repay fees to their clients in full where the work is of no value at all to the client. Employers are unlikely to be able to recover lost fees from their employees particularly where there is a duty […]

Can My Replacement Vehicle be a Beamer? Damages for Loss of Use for Tortious Damage to Property

Damages for ‘loss of use’ of a chattel has for many years been an unsettled area of the law, pleaded inconsistently by plaintiffs and, at times, miscategorised by the Courts resulting in conflicting judgments. The issue is particularly important in claims for damages involving replacement car hire when a person’s car is damaged by the […]

ACCC alleges SmileDirectClub misled consumers regarding health insurance reimbursements for clear teeth aligners

On 12 July 2021, the Australian Competition & Consumer Commission (ACCC) instituted proceedings in the Federal Court of Australia against SmileDirectClub Aus Pty Ltd and its US parent company, SmileDirectClub LLC (SmileDirectClub), alleging they had breached the Australian Consumer Law (ACL). The ACCC claims that between May 2019 and October 2020, SmileDirectClub breached section 18 […]

Commercial Occupiers: What is expected of them to keep premises safe?

Carnemolla v Arcadia Funds Management Ltd [2020] NSWCA 308 Key takeaways An occupier of commercial premises does not have a duty to keep a floor dry at all times, but rather to take reasonable steps to minimise the risk of harm by ensuring an adequate inspection and cleaning system is in place. The plaintiff bears […]

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