Australian insurance law: a first reference

Dedication
Full Title
Copyright
Preface
Acknowledgments
Tables of Cases
Table of Statutes
Table of Contents
	Part 1 Background
		Chapter 1 Insurance: A Risk Transfer, Loss-Spreading Arrangement
			Introduction
			The nature of insurance
			The essential characteristics of general insurance: risk transfer and loss spreading
			The non-essential characteristics of general insurance: contract, indemnity, premium and profit
			The differences between an insurance arrangement, a wager (bet), a guarantee or indemnity and a manufacturer’s warranty
			How insurance works
			Reinsurance
		Chapter 2 Dividing Insurance into Categories
			Introduction
			Marine insurance
			Life insurance
			General insurance
		Chapter 3 A Short History of Insurance
			Introduction
			Early commercial risk transfer arrangements
			The spread of insurance
			The history of loss spreading
			Insurance in Australia
			Conclusion
		Chapter 4 Regulation Of General Insurers
			Introduction
			Overview
			The Insurance Act 1973 (Cth) and APRA
			The Corporations Act 2001 (Cth) Ch 7
			The Australian Securities and Investments Commission Act 2001 (Cth)
			The Financial Sector (Shareholdings) Act 1998 (Cth) and the Insurance Acquisitions and Takeovers Act 1991 (Cth)
			Financial Sector (Collection Of Data) Act 2001 (Cth)
			The Privacy Act 1988 (Cth)
			Self-regulation: The General Insurance Code of Practice and the Financial Ombudsman Service
		Chapter 5 Insurance Intermediaries
			Introduction
			When is an insured fixed with an insurance broker’s knowledge?
			The liability of loss adjusters, loss assessors and Investigators in contract and in tort
			The liability of an insurance agent in contract and in tort and the liability of an insurer for the actions of its agent
			The liability of an insurance broker in contract and in tort
			The fiduciary obligations of an insurance agent and an insurance broker
			The Australian Securities and Investments Commission Act 2001 (Cth)
			The Corporations Act 2001 (Cth) Ch 7
			Self-regulation: The Insurance Brokers Code of Practice 2014 and the Financial Ombudsman Service
			Concluding observation
		Chapter 6 Introduction to the Insurance Contracts Act 1984 (Cth)
			Introduction
			Background
			Application of the ICA: ss 8 and 9
			The extended application of the ICA: s 10
			Limited relief elsewhere: s 15
			The approach to construing a provision of the ICA
	Part 2 Period Leading up to and Including the Formation of an Insurance Contract
		Chapter 7 Utmost Good Faith
			Introduction
			Do all contracts have to be performed in good faith? Is there a tort of bad faith?
			Utmost good faith at common law
			Utmost good faith under the ICA
			And yet
		Chapter 8 Pre-Contractual Disclosure
			Introduction
			No common law requirement for pre-contractual disclosure in relation to contracts generally
			The common law pre-contractual duty of disclosure in relation to insurance contracts
			An insured’s pre-contractual duty of disclosure under the ICA Pt IV: Disclosures and Misrepresentations
			An insurer’s pre-contractual common law duty of disclosure is not affected by the ICA
			An insurer’s pre-contractual requirement to inform under the ICA
			An insurer’s pre-contractual disclosure obligations under the Corporations Act 2001 (Cth) Ch 7
		Chapter 9 Formation of an Insurance Contract
			Introduction
			Intention to create legal relations
			Offer and acceptance
			Consideration
			Statutory illegality
			Assignment and novation
		Chapter 10 Insurable Interest
			Introduction
			The common law and statutes other than the Insurance Contracts Act 1984 (Cth)
			Contracts subject to the Insurance Contracts Act 1984 (Cth)
		Chapter 11 Duration of an Insurance Contract
			Introduction
			Interim insurance
			Renewal, extension and cancellation of an insurance contract
		Chapter 12 The Layout of an Insurance Policy: Recitals, Insuring Clause, Exclusions, Policy Terms and Definitions
			Introduction
			The recitals
			The insuring (operative) clause and exclusions
			Policy terms
			Warranties
			Terms descriptive of the risk
			Conditions
			Definitions
		Chapter 13 Construing an Insurance Contract
			Introduction
			Construing a parliamentary drafted insurance contract
			Construing a privately drafted insurance contract
			What the dictionaries say
			The approach to construction will usually favour the insured
			Rectification
		Chapter 14 The Nature of an Insurer’s Promise to Indemnify
			Introduction
			What an insurer agrees to do when it promises to indemnify an insured
			The nature of an insurance claim for indemnity
			Is an insurance claim for indemnity a claim under an insurance contract or a claim for damages for breach of contract?
			When does an insured’s cause of action for an indemnity accrue?
		Chapter 15 Causation
			Introduction
			The context in which the causation inquiry is conducted
			Proximate cause
		Chapter 16 Mitigation in Insurance Law
			Introduction
			Part 1
			Part 2
			Part 3
			Conclusion
		Chapter 17 First Party Insurance
			Introduction
			Property insurance (indemnity insurance)
			Sickness and accident insurance (contingency insurance)
		Chapter 18 Liability (Third Party) Insurance
			Introduction
			Public (general) liability insurance
			Product liability insurance
			‘Claims made’ and ‘claims made and notified’ liability insurance
			Compulsory insurance for liability to pay compensation for death or personal injury related to the use of a motor vehicle
			Proving entitlement to indemnity
		Chapter 19 Some Common Policy Terms
			Introduction
			Some common conditions
			Some common exclusions
			Some common causal connectors
			Some other common policy terms
	Part 3 The Claim
		Chapter 20 Broken Promises
			Introduction
			An insurer’s obligation to pay a claim within a reasonable time
			An insured’s right to s 57 interest for late payment of a claim
			An insured’s right to damages and other relief if an insurer wrongly denies, or delays, payment of a claim
			An insured’s choices if an insurer repudiates a policy
			Onus of proof
		Chapter 21 Election, Estoppel and Abuse of Process
			Introduction
			Waiver, election (waiver by election) and estoppel
			Granting indemnity and reserving rights
			An insurer’s entitlement to repayment of a claim paid by mistake
			Res judicata, issue estoppel and ‘anshun’ estoppel
			Abuse of process in the context of a liability insurance policy
		Chapter 22 Section 54
			Introduction
			The need for reform
			Text and context
			When s 54 is not in play
			When s 54 is in play
			If engaged, is the relief in s 54(1) or s 54(2)?
			How s 54(2) operates
			How s 54(1) operates on an ‘occurrence-based’ policy
			How s 54(1) operates on ‘claims made’ and ‘claims made and notified’ policies
			The scope of s 54(5)(b)
			Concluding observation
		Chapter 23 Fraudulent Claims
			Introduction
			The nature of a fraudulent claim
			An insurer’s common law remedy for a fraudulent claim
			An insurer’s remedy under the ICA for a fraudulent claim
			Collateral lies (formerly known as ‘fraudulent devices’)
			Some procedural and evidential matters
		Chapter 24 How Many Claims (Aggregation Clauses)?
			Introduction
			Aggregation clauses
			Some English and Australian cases
		Chapter 25 Claiming the Benefit of Another Person’s Insurance Contract
			Introduction
			Part 1: The common law and statutory provisions that give direct access to another person’s insurance contract
			Part 2: Statutory provisions that give a third party the direct benefit of a liability insurance contract
			Part 3: Statutory provisions that enable a judgment creditor to ‘garnishee’ the amount of an insurer’s liability to the judgment debtor
			Concluding observation
		Chapter 26 Some Insurance-Related Civil Litigation Procedures
			Introduction
			Liability insurance
			Client legal privilege and ‘without prejudice’ privilege
			An insurer denying its insured access to a non-privileged expert’s report
	Part 4 Recovery of an Insurer’s Loss from Third Parties and Other Insurers
		Chapter 27 Subrogation
			Introduction
			An insurer’s right of subrogation
			Exercising a right of subrogation
			No subrogation rights against another insurer; subrogation rights against a non-insurer indemnifier
			Circumstances in which an insurer has no, or limited, subrogation rights against a negligent third party
			Allocating the proceeds of recovery
			A third party’s liability to pay damages is not reduced by an insured’s access to insurance
			The limitation period for exercising a right of subrogation
		Chapter 28 The Duties Owed by a Lawyer When Retained by an Insurer
			Introduction
			A lawyer’s duties to a client generally
			Insurer’s lawyer investigating a third party claim against the insured
			Insurer’s lawyer informing insured they will be indemnified for a third party claim against them
			Insurer’s lawyer acting in the insured’s interests in relation to a third party claim against the insured
			Limits on the free flow of information and documentation from an insurer’s lawyer to the insurer and the insured
		Chapter 29 Double Insurance and Contribution
			Introduction
			Double insurance
			‘Other insurance’ clauses
			The equitable right to contribution
			Proving the right to contribution and determining the amount to be used for the contribution calculation
			The contribution calculation
Index