Zipser, Ben --- "Editorial: Fully covered - Ben Zipser" [2018] PrecedentAULA 64; (2018) 149 Precedent 2

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FULLY COVERED

By Ben Zipser

Insurance involves the shift and spread of loss from a single insured person to a pool of individuals who pay premiums to the insurer, and is thereby intended to provide those insured with financial certainty and security. There are many classes of insurance that directly affect individuals in Australia, such as life insurance, personal accident insurance, property insurance, liability insurance, motor vehicle insurance and income protection insurance. A myriad of legal, economic and regulatory issues arise in the relationship between insurers and the insured. These issues vary depending on the kind of insurance. This edition of Precedent considers a few of these issues which may be of interest to readers.

Two main classes of insurance are life and general insurance. Alexandra Kelly and Drew MacRae consider recent developments affecting these two classes, such as the commencement of the Life Insurance Code of Practice in 2017, amendments to the General Insurance Code of Practice, and the commencement of the operation of the Australian Financial Complaints Authority in place of the Financial Ombudsman Service from November 2018. The authors also provide tips for lawyers in assisting clients who are making insurance claims.

Some classes of insurance may be arranged through an individual’s superannuation fund, such as life insurance and TPD insurance. Earlier this year the Productivity Commission released a draft report into the superannuation industry which, among other matters, considers the arrangement of insurance through superannuation funds and recommends some reforms. Craig Parrish’s article provides a useful summary of these matters in the draft report.

Greg Pynt considers an issue which occasionally arises in connection with liability insurance contracts – the circumstances in which a person with a claim against the insured can directly obtain the benefit of the liability contract which indemnifies the insured against the claim.

People with mental illnesses often experience discrimination from the insurance industry. Typical forms of discrimination are the difficulty in obtaining insurance when mental health conditions are disclosed during the application process, and cover either being declined or offered only with a broad exclusion for claims arising from any mental health condition. Discrimination may also arise during the assessment of claims. Dr Louis Schetzer considers these topical issues in his contribution to this edition.

Kim Shaw considers two issues that commonly arise in acting for clients with a personal injury claim against a tortfeasor when there is a concurrent insurance claim for the same injury or illness. One issue concerns the circumstances in which the insurer may avoid the insurance policy for pre-contract non-disclosure or misrepresentation. A second issue is the relationship between the income protection payments received by the client under the insurance policy and their entitlement to common law damages against the tortfeasor.

Under the Nationality Disability Insurance Scheme (NDIS) people dissatisfied with specified categories of decisions of the National Disability Insurance Agency (NDIA) may apply to the Administrative Appeals Tribunal for merits review of these decisions. Jane McIlwraith’s and Bill Madden’s article examines some of the issues that have recently been the subject of Tribunal decisions, and offers a useful insight into the kinds of issues that have arisen under the Scheme.

In September 2016, the Victorian Ombudsman published her findings in relation to an investigation into the management of complex workers’ compensation claims in Victoria and WorkSafe oversight. Linda Hanley and Grace Bowran-Burge consider the report in their contribution.

Another article, by Janine McIlwraith, analyses the much-publicised case of Dr Hadiza Bawa-Garba. Dr Bawa-Garba was a medical practitioner in England who was convicted of manslaughter and deregistered for what, on one view of the facts, was an unfortunate clinical error exacerbated by systemic failures in the hospital on that day. . Gabrielle Feery and Amy Johnstone consider relevant factors for doctors in selecting an appropriate method of communicating patient results and healthcare plans to patients and third parties. Owen Hayford takes up the ever-evolving story of self-driving vehicles, examining liability issues in this space and how the insurance market is likely to respond. Finally, Sharon Drew’s article considers lump sum costs orders.

This edition of Precedent contains a spread of articles relating to insurance which will be of interest to individuals and their legal advisers. Readers should find the edition informative.

Ben Zipser is a barrister at the Sydney Bar, with a broad practice, principally commercial. PHONE [phone] EMAIL [e-mail].