In Livesay v Hawkins & Ors  QSC 122, the
Supreme Court of Queensland was recently required to consider what
constitutes a "claim" within the terms of a policy of
insurance. The dispute involved a real estate agent (Newman) and
his insurer (AHAC) and arose out of proceedings commenced by
Shirley Livesay for injuries she sustained in a house she rented at
Mrs Livesay and her husband rented the house from Gaylene and
Jeremy Hawkins who had engaged Newman to manage the property. He
was responsible for carrying out inspections of the house,
arranging repairs, entering into tenancy agreements and collecting
On Anzac Day in 2005, Mrs Livesay was injured when a pelmet
above a door in the house fell and struck her. The following day,
Mrs Livesay and her husband delivered a letter to Newman's
office. The letter contained words to the effect:
"...It caused personal injury to her left hand and
appears to have cracked her nose. We are currently seeking medical
advice and will advise you of our intentions on this
"As per the Tenancy Act and advice from Rental
Tribunal, Ray White Real Estate and the owners of a rental property
will be held liable for any personal injury claims arising from
damage caused to the tenants due to poor living
It also contained a lengthy description of problems with the
house and repairs that the Livesays considered needed to be carried
out. It appears little happened following this letter until
September 2005 when Mrs Livesay served a Form 1 notice of claim
under the Personal Injuries Proceedings Act 2002 (PIPA) on
Newman held a professional indemnity insurance policy with
American Home Assurance Company (AHAC) for the period 24 July 2004
to 24 July 2005. When Newman received the Form 1 notice of claim
under PIPA, he notified a claim to AHAC. AHAC refused to indemnify
him in respect of his liability to Mrs Livesay. The insurer
submitted that no "claim" had been made against Newman
during the policy period.
Newman and AHAC ended up before the Queensland Supreme Court.
The court was asked to consider whether the letter to Newman
constituted a "claim" for the purposes of affording him
coverage under the relevant policy. The policy defined
"claim" to mean "any written demand...for
compensation made against the insured but only in respect of
Professional Services by the Insured..."
The court considered that the letter expressly asserted an
entitlement on the part of Mrs Livesay to recover for her personal
injury claim "due to injury caused by dangerous
fixture." It occurred in the context of a letter in which
Mrs Livesay and her husband were seeking resolution of the
complaints they had in respect of defects in the property. The
letter made it clear that Mrs Livesay appreciated and contended
that she had a claim against Newman. The court considered that
these elements were sufficient for the letter to be considered a
form of demand, irrespective of whether the demand coincided with
complaints about the condition of the property. In the court's
opinion the letter constituted a written demand for compensation
within the definition of the term "claim" in the policy.
On that basis, the claim fell to be considered under the
The court held further, following a concession by the insurer,
that section 54 of the Insurance Contracts Act 1984
"cured" the late notification of the claim. [Newman,
however, was held not to be entitled to cover by virtue of the
operation of a bodily injury exclusion in the policy.]
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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