Australia: Insurance focus - Part I

June 2011
Last Updated: 23 June 2011


Our analysis of key legal developments in the insurance industry over recent months.

We moved into Canada and South Africa on 1 June 2011 when leading law firms Ogilvy Renault and Deneys Reitz, respectively, joined the Group. In this edition of Insurance focus, we include contributions from both practices. Amelia Costa, Patrick Bracher and John Neaves discuss the history of insurance law and practice in South Africa whilst Sally Gomery, from our Ottawa office, considers the implications of a recent Canadian decision which could require insurers to cover risks which they did not willingly assume.

From our Sydney office, Barry Richardson discusses a recent consultation paper on flood insurance and the move towards a standard definition of flood for insurance purposes. In addition, Michael Mendelowitz and Laura Hodgson examine the UK Government's proposals on the reform of consumer insurance contract law and consider the insured's duty to take reasonable care and the test for determining the principal of an intermediary.

In our case notes section, we focus on several recent cases of interest including R (on the application of the British Bankers Association) v The Financial Services Authority which considered the new regulatory provisions and guidance concerning the handling of complaints related to payment protection insurance.

We also include updates on regulation and insurance related developments from across our international practice.

Deneys Reitz – a tale from war to peace

On 1 June 2011, leading South African law firm Deneys Reitz joined Norton Rose Group – a combination that recalls a peace treaty between the British and the Boers more than 100 years ago in which Deneys Reitz played a significant role. Amelia Costa, Patrick Bracher and John Neaves consider how history has shaped the sources of insurance law and practice in South Africa, as well as Deneys Reitz as a law firm.

In October 1899, the Anglo Boer War commenced when Deneys Reitz's father, Francis Reitz, then State Secretary for the Transvaal, delivered the Boer Ultimatum to the British. Deneys Reitz, who at the time was 17 years old, volunteered his services to take on the British. At the end of the Boer War in 1902, Deneys Reitz and his family went into exile in Madagascar where he wrote the first of three books, Commando, in which he gives his account of the war. He returned to South Africa at the behest of General Jan Smuts, where he took part in the reconstruction following the war. After his return, he realised that the only solution for South Africa was cooperation between the English and Dutch sections of the community. He fought with the British forces in the First World War and ended the war as commander of a famous Scottish Battalion fighting in Africa and Germany.

After the First World War, Deneys Reitz entered politics and started practising law. In 1924 he formed a partnership with two others. The firm, Deneys Reitz, Jacobson and Effune later merged with Frank Benjamin and Ridsdale and became a major firm with a substantial presence in the insurance industry, representing 90 per cent of insurance companies in South Africa. This firm laid the foundations for Deneys Reitz as it is today, the leading financial services firm in South Africa.

As with the history of Deneys Reitz, there has been tension between Dutch and English law when it comes to insurance law and practice.

South African common law has its origins in Roman-Dutch law, which was introduced in 1652 when settlement at the Cape of Good Hope took place under Dutch rule. However, after the Cape was taken over by the British at the end of the 18th century, the South African courts came to rely on English law and precedent. In 1879, the Cape legislature formally introduced English law for the Cape Province and in 1902, at the end of the Anglo Boer war, the Orange Free State followed suit. In 1977, this legislation was repealed and Roman-Dutch law was restored as the common law in both provinces. In Natal and Transvaal, Roman-Dutch insurance law was never displaced but the law in both provinces was heavily influenced by English law.

In areas where Roman-Dutch law is of little assistance such as the law on companies, insolvency, negotiable instruments and intellectual property, English legislative patterns were followed. In shipping law and marine insurance together with fire and life assurance, English law was influential in the development of jurisprudence.

Against this background, Roman-Dutch law remained influential. It is based on time-honoured principles but is readily capable of development to meet modern circumstances.

In relation to insurance, English law was followed not only because certain principles were specifically adopted but because the wealth of English judicial precedent was a ready source of good example. In addition, English forms of insurance policies were used by South African insurers; many of them with British head offices. The wordings survive to this day and judicial interpretation in the English courts of these wordings is highly persuasive in the South African courts.

Slowly the worth of English precedent in South Africa gave way to the pursuit of insurance principles based on the Roman-Dutch law of contract. This has enabled South African courts to reason through insurance problems to an equitable result by applying principle rather than precedent. A good comparison is the long line of English cases that culminated in Pan-Atlantic Insurance Co Ltd v Pine Top Insurance Co Ltd (1994) where the House of Lords laid down certain principles relating to avoidance of an insurance contract on the basis of material non-disclosure. These principles were, with respect, more easily dealt with by the South African courts which applied the Roman-Dutch law principles of misrepresentation inducing a contract. Those principles are well known in South African common law and easily led to a workable solution regarding materiality and inducement in Mutual & Federal Insurance Co Ltd v Oudtshoorn Municipality(1985) where the Appellate Division used the reasonable man test as developed in Roman-Dutch Law.

Other recently reported cases illustrate the point as well. In Axa General Insurance Limited v Gottlieb (2005), the Court of Appeal debated to what extent fraudulent conduct by the insured vitiated the right to claim for losses before and after submission of a fraudulent claim. The South African Appeal Court took a mere six pages to conclude that a false claim only affects rights accruing under the policy after termination as a result of fraud. According to ordinary Roman-Dutch principles of contract, rights accrued remain in force and there is no penal principle in South African contract law. In doing so, the court refused to adopt certain contrary principles of English law suggested to it in argument.

Similarly, there is little to debate in South African contract law regarding a continuing duty of good faith and disclosure in relation to a contract. This issue was dealt with by the English courts in Marc Rich Agriculture Training SA v Fortis Corporate Insurance NV (2004), where the court referred to the duty of utmost good faith. South African courts have remarked that there is either good faith or not and the concept of "utmost" good faith adds no additional meaning. The Court of Appeal in Blackburn Rovers Football & Athletics Club v Avon Insurance (2005) referred to evidence to question whether a footballer's degenerative back condition was normal disc degeneration or the result of some traumatic cause. Similar issues relating to pre-existing conditions have been debated in South Africa and in Concord Insurance v Oelofsen (1992), the court recognised that most people suffer from some medical defect or other and that not every such cause is a pre-existing condition. In the context of a contractual time bar, the failure of an underwriter to expressly rely on time limits has been debated as an implied term or estoppel both in England in Fortisbank SA v Trenwick International (2005) and in South Africa in Union National South British Insurance v Padayachee (1985).

The South African Short-term Insurance Act specifically authorises Lloyd's to conduct insurance business in South Africa. In addition, there are a number of major international insurers who conduct business through subsidiaries in the country. For that reason a great deal of insurance business is underwritten in terms of policies which are as familiar in London, Toronto and Sydney as they are in Johannesburg. A number of South African decisions have dealt with the interpretation of the wording of various Lloyd's policies. For instance, in Van Zyl NO v Kiln Non-Marine Syndicate (2002), the court found that a driver who had driven his vehicle after consuming large amounts of alcohol was not entitled to an indemnity because there was wilful exposure to danger. In Napier NO v Van Schalkwyk (2003) the court found that a requirement to report damage to a vehicle within 24 hours of the accident was clear and unequivocal in its meaning and effect and the breach absolved the Lloyd's insurer from liability. In Certain Underwriters of Lloyd's of London v Harrison(2003) the Appeal Court rejected a claim because of material non-disclosure of the fact that the vehicle had been imported into the country unlawfully thus prejudicing the insurer's interest in salvage of the goods insured. Lloyd's of London v Skilya Property Investments (2003) is a judgment in favour of the Lloyd's insurers on an aviation insurance policy containing an exclusion for damage sustained whilst the aircraft was being used for an illegal purpose (in this case smuggling cigarettes). The South African law reports are replete with similar decisions.

English judgments often refer to Canadian, Australian and New Zealand cases. It seems clear that in the apartheid years the English courts lost the habit of looking to South African decisions for comparative reasoning. Our theme is that we can repay some of the debt owed to English law and that English lawyers and for that matter lawyers all over the world, will find useful decisions among the body of South African case law.

We propose to highlight significant cases emanating from our courts in future editions of Insurance focus.

Article by: Amelia Costa, Patrick Bracher and John Neaves

Opening the door to uncertainty – Kouri v Gougeon

In the recent decision of M.B. Kouri Insurance Brokers Ltd. v R.L. Gougeon Ltd., the Ontario Court of Appeal ruled that a broker could issue a binding renewal of an insurance policy despite an agreement stating that it did not have this authority. Unusually, the insurer argued that the renewal was binding because it wanted to recover premiums collected by the broker for the unauthorised renewal. Sally Gomery in our Ottawa office considers the Court's reasoning, which may open the door to other circumstances in which a court might require an insurer to cover risk that it did not willingly assume.

The facts

Kouri was an insurance broker whose clientele consisted solely of around 175 campground operators. Kouri obtained insurance for its clients from Ecclesiastical Insurance through Gougeon, a wholesale broker with a book of business for Ecclesiastical. The sub-broker agreement between Gougeon and Kouri provided that Kouri had no authority to bind Ecclesiastical to an insurance contract.

All the insurance policies for the campground owners had a common expiry date of 30 May 2004. In early 2004, Kouri asked Gougeon about a possible renewal of the Ecclesiastical policies. Having received no response, on 10 May Kouri unilaterally issued new certificates of insurance to its clients for a further year-long term of coverage from Ecclesiastical. A few days later, Ecclesiastical advised Gougeon that it was extending the term of the existing policies for 30 days whilst it decided whether it would renew the program. In the meantime, Kouri invoiced its clients for premiums at an increased rate for renewed annual coverage. Kouri did not advise Ecclesiastical or Gougeon that it had sent its clients new certificates for another year's coverage or that it had collected premiums for the first month of such coverage.

In early July 2004, Kouri advised Gougeon that it had obtained coverage from another insurer effective from 1 July. After deducting a commission, Kouri used the money it had received as premiums for Ecclesiastical's coverage in June to pay the premiums charged by the new insurer. Some time later, Gougeon and Ecclesiastical learnt about the certificates that Kouri had issued for the renewal of the Ecclesiastical policies and the premiums that Kouri had collected for it. They demanded that Kouri remit premium payments to Ecclesiastical for its June coverage. Kouri refused and sued Ecclesiastical and Gougeon for a declaration that it owed Ecclesiastical nothing and in fact was entitled to damages for Ecclesiastical's failure to decide on the potential renewal of its policies in a timely way. Ecclesiastical counter-sued for the payment of premiums collected by Kouri for its coverage in June 2004.

The trial judge found that Ecclesiastical was not entitled to premiums for coverage in June because it did not tell Kouri that there would be a cost for the 30-day extension. Even if it had, the trial judge found that Ecclesiastical had been negligent in not determining the issue of renewal in a timely way, and that Kouri had as a result suffered damages equivalent to the premiums paid on account of the purported renewal. Ecclesiastical and Gougeon appealed.

The Ontario Court of Appeal's decision

The Ontario Court of Appeal allowed the appeal and ordered Kouri to pay Ecclesiastical the amounts received from its clients as premiums for the renewal of coverage. The Court relied on section 402 of the Insurance Act, which provides that an agent or broker who receives money as a premium for an insurance contract is deemed to hold such premium in trust for the insurer. In the Court's view, Kouri's unilateral act of sending out certificates of insurance created valid contracts. The issue was not whether Kouri could in fact bind the insurer. On the face of the sub-broker agreement, Kouri had no such authority. However, an insured who received a certificate had no knowledge of the terms of the sub-broker agreement, and had no reason to question its validity. As a result, in the Court's view Kouri's "ostensible authority was sufficient to create binding contracts of insurance on behalf of Ecclesiastical".

The Court also found that Ecclesiastical's failure to advise Kouri in a timely way about a possible renewal was "arguably irresponsible" but not illegal or wrongful conduct. All parties were corporate entities entitled to pursue their own commercial interests.

Implications of the Court of Appeal's decision

Canadian insurers generally assume that they cannot be bound by unilateral acts of brokers in the absence of a special agreement to the contrary. In some cases an insurer has been ordered to honour a claim made by an insured to whom a policy was not issued due to the failure of an agent or broker to forward the insurance application to the insurer. In such cases, however, the insured has paid the required premium and the insurer would have issued a policy had it received the application.

The outcome in Kouri v Gougeon was obviously influenced by the position taken by Ecclesiastical that the renewals issued by Kouri were binding despite Kouri's lack of authority to act as it did. However, the Court's reasoning with respect to Kouri's ostensible authority could apply in situations where an insurer was contesting coverage. On the Court's analysis, the central issue was not Kouri's actual authority but the insureds' perception of it. As a result, if the issue were not the insurer's right to collect premiums but rather its obligation to cover a large claim, the Court might well conclude that an insured was entitled to coverage even though a renewal had been issued by a broker without the insurer's consent. In such a case the insurer might have a claim for indemnity against the broker, but its right of recovery could be limited by the broker's inability to pay a large judgment.

To protect themselves from such a situation, insurers should ensure that policies clearly set out the limit of the authority of a broker to issue renewals. They should also remind brokers of the limits of their authority under their agreements in situations where the coverage will expire shortly and no decision on a renewal has been made. Unfortunately neither of these measures provide complete protection because insureds may not be able to distinguish between certificates actually issued by the insurer and those devised by a broker who has acted with authority in past dealings.

Article by Sally A Gomery

Storms, floods and coverage under Australian insurance policies – Treasury Consultation Paper

The storms and consequential wide-spread flooding affecting the eastern part of Australia rightly attracted world wide media attention. Despite some of the more sensational headlines, issues relating to insurance are but one aspect of what clearly requires broad contribution from industry generally, insurance stakeholders, consumer and like groups and a tripartite, preferably bi-partisan government approach to the key issues. In recognition of the importance of the role of insurance, an independent review into disaster insurance in Australia has been established. The Natural Disaster Insurance Review will focus on insurance arrangements for individuals and businesses for damage and loss associated with flood and other natural disasters. The Review is to report to the Assistant Treasurer by 30 September 2011. Barry Richardson discusses the issues raised in a recent Consultation Paper on flood insurance.

In April 2011, the Treasury released a Consultation Paper entitled Reforming flood insurance: Clearing the waters. The paper presents the Federal Government's proposed reforms to household insurance policies, including two related proposals said to deliver greater clarity, these being:

  • a standard definition of flood for use in insurance policies
  • a short key facts statement that summarises the contents of insurance policies to be made available to consumers.

This apparently follows the experience of policyholders reporting that they were not aware that losses arising from particular types of water inundation were not covered by their policies.

The paper includes possible options for both of these initiatives and seeks comments and feedback on these proposals and a number of related issues, including options for rules surrounding their implementation.

The first proposal – a standard definition of flood

The Insurance Council of Australia (ICA) has suggested that the risks of inundation can be divided into three broad categories:

  • Stormwater/rainfall run-off (category A): These terms refer to high intensity, short duration storms producing localised flooding. Most insurance policies (but not all) cover this risk. Some insurers also use the term "flash flooding" with similar intent.
  • Riverine/inland flooding/flooding (category B): Inundation caused by watercourses or catchments overflowing their banks due to long duration rainfall over large areas. Some insurers provide cover for this risk, but many exclude it. Whether included or excluded, the definitions of this risk can vary greatly.
  • Actions of the sea/sea level rise/storm surge (category C): Inundation caused by movement of seawater. Few insurance policies cover this risk.

Aside from various definitions of category B, some policies use terms such as "flash flooding", "accidental flooding" and "tidal flooding", to describe other types of inundation risk.

The paper notes that in the wake of the recent floods in Queensland and Victoria, a number of policyholders reported that they were surprised that their policies did not cover the type of inundation that occurred. The majority of these cases relate to policies that cover for category A but exclude cover for category B (riverine flooding).

The variations in usage of the term "flood" and "flooding" in policies are a potential source of confusion for many consumers. For example, a policy which is stated to cover "accidental flood" or "flash flooding" could give the initial impression that the policy covers risks arising from rivers breaching their banks. However, the policy might contain an exclusion for riverine flooding cover that would be evident on a careful examination.

The different approaches taken in policies to the term "flood" and related terms and potential confusion for many consumers makes product comparison difficult and may lead to underinsurance for flood risk.

The paper notes that the accessibility and affordability of category B (riverine flooding) cover in Australia is a complex issue that involves a range of factors, including availability of flood mapping data, mitigation strategies, availability of reinsurance cover, and others. These matters are being considered in the Natural Disaster Insurance Review and the paper's objective is not to have all relevant policies cover category B (riverine flooding) risk.

The paper proposes that consumer confusion over the meaning and extent of "flood" coverage may be best addressed by standardising the definition of "flood" and restricting the use of the terms "flood" and "flooding" to the standardised definition.

Standardising the definition of "flood" in policies has been called for by industry and consumer representatives.

The primary objective is said to provide greater clarity on whether or not policies provide cover for category B (riverine flooding).

The standard definition proposal has two elements:

  • introducing a standard form of words to describe category B (riverine flooding) risk, which is suitable to use by way of both an inclusion or an exclusion, and which would be required to be used by insurers in all relevant policy language
  • reserving the term "flood" and "flooding" for that specific purpose, so that potential confusion with other types of inundation risk is minimised.

The proposed definition is:

Flood means the covering of normally dry land by water that has escaped or been released from the normal confines of:

  1. any lake, or any river, creek or other natural watercourse, whether or not altered or modified
  2. any reservoir, canal, or dam.

The definition would be accompanied by rules that insurance policies of the relevant class must not include the term "flood" or "flooding", except in association with the proposed standard definition. That restriction would also prevent those contracts from including compound phrases based on "flood" (for example, "flash flood" and "accidental flooding").

The paper then canvasses a number of issues that those making submissions may wish to address or consider.

It is suggested that the proposed standard definition and the restriction on usage could be implemented through including appropriate provisions in the Insurance Contracts Act 1984 (the Act). Alternatively, although the existing standard cover regime in section 35 of the Act might be used as a platform, there are likely to be advantages in making the proposal independent of that framework.

Whilst the proposal could be restricted to home buildings and home contents insurance policies, already legally defined through the operation of the standard cover regime in the Act and the Corporations Regulations, to extend the reach of the proposal beyond that class (for example, to retail premises/contents) would require the creation of a new category of policy. Within such a class would be many policies that are not subject to either the standard cover regime under the Act, or even the consumer protection rules in the Corporations Act 2001 applicable to retail customers of financial services.

The second proposal – the key facts statement

As one would expect, a number of policyholders reported that they were not aware, until after the event, of important aspects of their insurance policies.

Information about the terms and conditions of general insurance policies is required to be provided by a combination of the Act and the Corporations Act 2001. The combination of these requirements means that insurers produce, in respect of each relevant type of policy, a Product Disclosure Statement (PDS). The PDS must be issued by the insurer to persons when they first enter the policy. The PDS is required by the law to contain a prescriptive range of information.

The information must be presented in a "clear, concise and effective" manner. If the PDS relates to a certain class of household/domestic contract as prescribed under the Act, it must also "clearly inform" the consumer of any terms of the contract that differ from the standard cover for that type of contract.

The objective of the proposal is said to allow consumers to quickly and easily check the basic terms of the insurance policy, including the nature of cover and any key exclusions. This would help consumers select appropriate products and compare the features of various offerings.

It is not the intention to create a substitute for the PDS. However, the paper does recognise that a proportion of consumers do not read the PDS, either before or after purchase.

The proposal being considered by the Government involves requiring issuers of home buildings/contents insurance policies, in addition to their PDS, to offer to consumers a short statement (one A4 page in length), which contains a set of key facts about the policy.

It is proposed that the contents and format of the key facts statement would be prescribed to some extent, and that each insurer would need to create a key facts statement for its policies that accorded with the requirements. A number of options for the nature of the requirements are set out in the paper, which includes a draft sample of such a statement, for consultation purposes.

Whilst the proposal is directed at home buildings and home contents policies, it is suggested that when the proposal is refined in relation to those policies, an assessment will be made about whether the initiative could be extended to other classes of policy.

Other initiatives

Aside from the Natural Disaster Insurance Review and the proposals referred to above, the paper highlights other initiatives such as the Government liaising with stakeholders on other improvements to the framework for insurance including:

  • reliable flood risk mapping
  • timeframes for claims handling
  • facilitating payments of insurance premiums via Centrepay, a voluntary, free, direct bill-paying service offered to customers receiving Centrelink payments.

Submissions closed on 13 May 2011.

Article by Barry Richardson

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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This article is part of a series: Click Insurance Focus - Part II for the next article.
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