Does a subrogated claim give rise to a general res judicata if an insured’s loss is partly insured and partly uninsured?

In De Armas v Peters [2015] NSWSC 1050, the Supreme Court of NSW declined to grant leave to appeal from a decision of the Local Court.  The Local Court had allowed a man to sue for the cost of repairs to his car, even though he had previously sued her for car hire costs he incurred while those repairs were being undertaken.  And even though, in that first case, the Local Court had found him to be the negligent driver, not the woman.  Impossible?  There was of course a twist.  The first suit was brought with the involvement of a car hire company from whom the man had hired the car he used while his car was being repaired. No doubt they had told him that the car would be at no cost to him and the cost of the hire would be recovered by the car hire company’s solicitors from the negligent driver.  The second suit was brought by his insurer, having stepped into his shoes through the law of subrogation.  The man’s losses were partly insured and partly uninsured, hence his deal with the car hire company to which he was probably referred by his repairer.  And the woman’s insurer had not taken any defence of abuse of process in either proceeding before she obtained judgment in the first.  You can watch a discussion between AAMI’s solicitor and barrister about the decision on the excellent BenchTV here. Continue reading “Does a subrogated claim give rise to a general res judicata if an insured’s loss is partly insured and partly uninsured?”

Proving a loss for insurance purposes; inadequacy of reasons as an appeal ground

In Kalloghlian v Chubb Insurance Company of Australia Ltd [2016] NSWSC 902 (the Court’s summary is here), a man said he purchased a Rolex in Syria in 2005.  He insured his things with Chubb against loss anywhere in the world.  The policy was described as ‘Deluxe’.  It specifically insured items  which the insured owned as well as things he possessed.  The insured said he lost the watch on Copacabana Beach in July 2014.  The police declined to take a report.  He had no receipt from its purchase.  He could not remember from which jeweller he had purchased it.  He had lost his passport for the period of the trip to Syria.  Chubb declined the claim.  The insured sued.  The Magistrate dismissed the suit.  The insured appealed. The Supreme Court ordered a new trial.

The decision is hardly ground breaking.  But it is simple.  And it is useful to be reminded about the following:

  1.  An insured may prove a loss by giving oral evidence of the loss.  A lack of documentary or other corroboration is not fatal.  It is just something to be assessed in considering whether the plaintiff has satisfied the Court it is more likely than not that he suffered the loss.
  2. That is so even where it is a condition of cover under the policy that the plaintiff provide various proofs of ownership and of loss.  That is because s. 54 of the Insurance Contracts Act 1984 excuses breaches by the insured of policy conditions where the breach cannot have caused the loss, except to the extent of any prejudice to the insurer.
  3. Even busy decision makers in over-worked jurisdictions have to identify controversies raised by the parties which are necessary to determine in order to find for one party or the other, and explain why they resolved those controversies the way they did.  A failure to do so will result in the decision being set aside.  Robert Sheldon QC’s blog keeps an eye on this area of law.  See here and here and here.  The Court’s summary of the obligation in New South Wales to give adequate reasons is set out in full below.
  4. Where the facts are ascertained sufficiently that there is only one correct decision, the appellate tribunal may substitute its decision.  Where, as here, however, it was necessary to take into account how witnesses presented, the appellate tribunal will remit the case to be re-heard, where necessary (as here) by a new decision maker.

The obligation to give proper reasons, especially where there are contests of oral evidence, is an important one and should be jealously guarded.

Continue reading “Proving a loss for insurance purposes; inadequacy of reasons as an appeal ground”

Advocates’ immunity: at once more powerful and narrower than most yet understand

Advocates’ immunity was, until recently, more powerful than many lawyers were aware. Since the 1 July 2015 introduction of the Legal Profession Uniform Law and the High Court’s May 2016 decision in Attwells v Jackson Lallic Lawyers Pty Limited,[1] however, it may be narrower than many realise. And perhaps not everyone is aware that the immunity these days is very likely peculiar to Australia; it is certainly not a feature of English, American, Canadian, Continental, Indian, South African or New Zealand law.[2] Continue reading “Advocates’ immunity: at once more powerful and narrower than most yet understand”

Disciplinary costs insurance unavailable to solicitors, for now

Readers of my last post but one would be forgiven for thinking that the cover for costs of disciplinary investigation and prosecution referred to is available to Victorian solicitors as well as for Victorian barristers.  Turns out it is not, for the time being.  Doctors and solicitors are different in that regard.  It would be remiss of me not to mention that that gentleman of the profession, Geoff Gronow, provides invaluable free support to solicitor members of the Law Institute of Victoria who find themselves the subject of a disciplinary complaint in his capacity as LIV Members’ Advocate.  And in Queensland, the Law Society has a scheme which provides free legal advice to solicitors who receive a letter from the Legal Ombudsman or the Law Society in a disciplinary investigation.

I’m sorry for the confusion I must have engendered.  But the interesting thing is that the post obviously struck a chord, to an extent which surprised me and, it would seem, certain others. There are a lot of solicitors who would love to have this cover. Paddy Oliver at Lexcel, a risk management consultancy for solicitors, bemoans lawyers’ abject failure to manage what he refers to as ‘regulatory risk’. Perhaps solicitors are in fact more interested than they are given credit for, but frustrated by a lack of easy fix. So great has the interest been that Affinity had a fresh look at extending the cover to Victorian solicitors, and while it was doing so I held off on publishing this clarificatory post, but it seems that it’s not to be, for now at least.  But if it is an issue that is important to you, tell Affinity that it is something you would purchase, and raise it with Raynah Tang, the (rather good) President of the Law Institute: @livpresident. Continue reading “Disciplinary costs insurance unavailable to solicitors, for now”

Insurance cover for disciplinary investigations and prosecutions

In the financial year ending 30 June 2012, the Legal Services Commissioner in Victoria received 1,982 new complaints following 5,316 enquiries. When representing lawyers in disciplinary investigations and prosecutions, my fees generally come out of their own pockets. I have seen lawyers bankrupted by disciplinary prosecutions and others who have left practice and sought psychiatric assistance because of the trauma associated with them. This post provides some case studies of how ugly disciplinary investigations can get and points out that there is insurance available for the defence costs. Continue reading “Insurance cover for disciplinary investigations and prosecutions”

AR Conolly & Company’s Benchmark digest

To blog, you have to be able to write, type, and learn a new programme (WordPress in my case) but there is really only one trick to blogging, and that is finding what to write about efficiently.  I rely on various sources, most of which I will keep under my hat, but the best is a daily email put out for free by a Sydney specialist insurance litigation firm, AR Conolly & Company, titled ‘Benchmark’.  Someone there reads or scans a lot of cases, and digests them usefully, adding to the court-provided keyword headnote, providing hyperlinks to the Austlii versions of the decisions, and, where appropriate, to related decisions such as, in the case of appeals, the decision at first instance. Continue reading “AR Conolly & Company’s Benchmark digest”

Dentist does worse on appeal to VCAT than before the Dental Practice Board

In Von S v Dental Practice Board [2008] VCAT 2302, a dentist sought merits review in VCAT of a decision of the Dental Practice Board to suspend his registration for 3 months.  He had practised for two and a half months without being registered (a crime punishable by a maximum fine of $11,000), practised without insurance for 20 months, and been uncooperative when the Board sought to investigate him by failing to respond to letters, and then breaking a promise to see a psychologist and provide a report. Continue reading “Dentist does worse on appeal to VCAT than before the Dental Practice Board”

Ian Enright’s Professional Indemnity Insurance Law

I have a bad habit of buying books which cost several hundred dollars each and get overtaken by new editions after a couple of years. I am yet to experience the pain of an expensive text I have bought going into a new edition though, so nascent is my career as a barrister.  About this time last year, I had lunch with a judge of the Supreme Court who told me to my absolute astonishment that at the height of his career at the Bar, he spent $80,000 a year on books and reports. That news did me no good at all.

Texts are good, a basic fact of legal life which young lawyers are rapidly overlooking.  Without text writers, the law could not possibly survive in its current form.  They have an important function.  They ignore the bad decisions and explain what the long ones mean.

I picked up most of the library of John de Konig when he retired in June.  So I’m seriously well stocked for insurance texts — Sutton’s Insurance Law in Australia, Derrington’s Liability Insurance Law, Kelly & Ball’s Principles of Insurance Law, Mann’s Annotated Insurance Contracts Act, Tarr’s Australian Insurance Law, Clarke’s The Law of Insurance Contracts, Ivamy’s General Principles of Insurance Law, and even Mitchell’s The Law of Subrogation (feel free to come and borrow them).

Recently I picked up a serious text: Ian Enright and Digby Jess’s Anglo-Australian Professional Indemnity Insurance Law, Second Edition, December 2007.  It has a green faux leather hard cover with gold lettering.   Published by Thomson, it’s almost 1,000 pages long, and retails at $541.  It’s a monumental work, the only one devoted exclusively to its subject, and it naturally won the 2008 British Insurance Law Association prize for the most notable contribution to the literature of insurance law for the year.  It’s a good book because it achieves one of Enright’s aims, which was to start each topic at the start so as to make it accessible to the non-specialist reader.  It is well-organised, and carefully cross-referenced.  And it contains lots of answers, which is handy because that’s what I’m in the business of selling. Continue reading “Ian Enright’s Professional Indemnity Insurance Law”

Appeal succeeds in Lawcover indemnity dispute with entrepeneurial solicitor

I posted about Swart v Carr here and here.  It is a decision about whether a solicitor’s liability for certain entrepeneurial activities undertaken by him ‘was incurred “in connection with” “the business of practising as a solicitor”.  The trial judge answered affirmatively.  Now Justice Palmer’s decision has been reversed by the New South Wales Court of Appeal, in a decision about which professional indemnity insurers of lawyers will be relieved: Carr v Swart [2007] NSWCA 337.

On the way through, the solicitor served a creditor’s statutory demand on Lawcover, and Lawcover succeeded in having it set aside. The decision ([2007] NSWSC 306) might conceivably be a useful illustration of the nature of the rights and obligations of a claimant, insured and insurer, but I have not read it.