By Thomas Hurley -
Key decisions
- Maxwell v Highway Hauliers Pty Ltd [2014] HCA 33
- Plaintiff S4-2014 v Minister for Immigration and Border Protection [2014] HCA 34
Insurance
Contract – remedies – insurer not to refuse indemnity unless acts of insured affect risk – whether acts of insured affect risk – insurance of trucks – failure of insured/owner to psychologically certify drivers – whether this act affected claims
In Maxwell v Highway Hauliers Pty Ltd [2014] HCA 33 (10 September 2014) the respondent owned B-double trucks that were insured with the appellant insurers. The policy required, inter alia, that the drivers be certified as psychologically attuned to driving the trucks. Trucks were involved in collisions in Western Australia while being driven by drivers who had not been psychologically tested and certified and the appellant insurers denied indemnity. The insurers accepted that the failure to test and certify the drivers had no effect on the actual risk for s 54(2) of the Insurance Contracts Act 1984 (Cth). The insurers contended that they could refuse to pay the “claim” under s 54(1) of the Act as the “claim” was limited to a claim for an insured risk and having the trucks driven by uncertified drivers was not such a risk. The insurers failed at trial and before the Court of Appeal (WA). Their appeal to the High Court was dismissed in a joint judgment: Hayne, Crennan, Kiefel, Bell and Gageler JJ. The High Court concluded the failure to ensure the drivers were certified was an act of the insured that occurred after the policy was formed for s 54(1) and the section operated to prevent the insurers from denying liability as a consequence unless their interests were actually prejudiced which was not the case. Decision in Johnson v Triple C Furniture & Electrical Pty Ltd [2012] Qd R 337 overruled. Appeal dismissed.
